Lord Davidson of Glen Clova

Neil Forbes Davidson, Esquire, QC, having been created Baron Davidson of Glen Clova, of Glen Clova in Angus, for life—Was, in his robes, introduced between the Lord Elder and the Baroness Goudie.

Parliament: Relationship with Government

Lord Peyton of Yeovil: asked Her Majesty's Government:
	Whether they will set up an independent inquiry into the workings of Parliament, and, in particular, the relationship between government and Parliament.

Baroness Amos: My Lords, the Government have no plans to establish such an inquiry. The relationship between Parliament and the Government is under constant scrutiny through the work of both Houses and their Select Committees and of outside organisations.

Lord Peyton of Yeovil: My Lords, I don't think that does anything to cheer me up. If, as I very much hope, the Government share the widespread anxiety that now exists about the diminishing respect for Parliament, they might do something to lessen the degree of subordination that they impose on Parliament. They might, for instance, recall that Parliament has other duties besides being the legislative treadmill of the Government. Lastly, perhaps I may suggest to the noble Baroness, without wishing to be in any way impertinent to her, that if their devotion to democracy was as genuine as they would have us believe, perhaps they will allow both Houses of Parliament to elect their own Leader instead of having Cabinet Ministers imposed on them by the Prime Minister.

Baroness Amos: My Lords, I have to say that I find the noble Lord's final comment incredibly interesting, particularly as this House took a very long time to agree that it would have its own independent speaker, rather than one appointed by the Prime Minister. I cannot agree with the tenor of the noble Lord's questions. If he looks at the Government's record on devolution and reform of this House and the fact that this Labour Prime Minister has put himself up for additional scrutiny by the House of Commons by appearing before the Liaison Committee, for example, and given up powers of patronage to the Appointments Commission, he will see that our devotion to democracy is very strong indeed.

Lord Sheldon: My Lords, does my noble friend agree that the balance between the executive and the legislature has changed and moved in favour of the executive? Does she further agree that the role of this House has increased with the removal of most of the hereditary Peers? Because of those two factors, is it not clear that this House must play a rather more important role than it has in the past?

Baroness Amos: My Lords, I think that the House continues to play an important role. It is a role that, I think, Members of this House value and that those outside the House also value. I do not agree that the balance has moved in favour of the executive. There are always these discussions. The proposals that we have put in place have added to the nature of our democracy rather than taken away from it.

Lord Holme of Cheltenham: My Lords, is the noble Baroness aware that it was exactly 30 years ago, in 1976, in his Dimbleby lecture, that the late Lord Hailsham described our constitutional arrangements as—what was it?

Noble Lords: An elective dictatorship.

Lord Holme of Cheltenham: I was just checking. He described it as an elective dictatorship. Does the noble Baroness agree that in the intervening years—despite, as she rightly said, a flurry of constitutional reform in the first years of this Government—on the whole, the power of the Executive has increased, is increasing and ought to be diminished? Finally, does she agree that, given the plethora of outside reports—this makes me sceptical of the desire of the noble Lord, Lord Peyton, for an independent inquiry—including two from the Hansard Society and one from your Lordships' Constitution Committee, the need is probably less for an independent inquiry and more for an exercise of political will not just on the part of government but on the part of Parliament itself?

Baroness Amos: My Lords, I have a certain sympathy with the noble Lord, because I had forgotten the quotation myself. A Government who have introduced a Human Rights Act, a Freedom of Information Act and a Constitutional Reform Act cannot be accused of having moved the balance of power in favour of the executive. With respect to some of the reports that have been prepared about the role of Parliament, I have seen myself that any number of Members of this House will stand up to talk about the importance of the role of Parliament and of Parliament liaising with the public. Those are things for which Parliament and this House should take responsibility, not look to the Government to deliver.

Lord Strathclyde: My Lords, is not my noble friend Lord Peyton of Yeovil entirely correct to raise the issue at this time, although he could have raised it at any time during the past eight years, because we have seen such an erosion of Parliament's powers against those of the executive? The noble Baroness came out with a long list of what the Government had done. We are soon to debate the Legislative and Regulatory Reform Bill. If the noble Baroness clings so much to the power of Parliament, will she give her party a free vote when we deal with the clauses that affect the balance and relationship between the executive and Parliament?

Baroness Amos: My Lords, I thought that the noble Lord, Lord Strathclyde, in his initial references, was going to talk about the 18 years of Conservative government, rather than starting in 1997. He will know that the Legislative and Regulatory Reform Bill is designed to reduce burdens on business. Some concerns have been expressed, and my honourable friend the Minister at the Cabinet Office is meeting the chairmen of the Select Committees to discuss several points that have been made. There are proposals to put some amendments to another place before Report, and we will, of course, consider the Bill in our own time.

Lord Howarth of Newport: My Lords, has not the litany of moans been the same for 300 years, since Sir Robert Walpole was Prime Minister, that the government manipulate the patronage system and the press and bully Parliament, while MPs are useless and on the make? Surely the performance of Parliament depends now, as it always has done, on the ability, the diligence and the sturdiness of its Members. And if those qualities are currently somewhat lacking on the Conservative Benches—in the lower House only, of course—surely the remedy lies there rather than in some independent inquiry.

Baroness Amos: My Lords, as I said earlier, this House and its Members play a valuable role, but we must also think about what my noble friend has said. The responsibility for dealing with some of the queries that have been consistently raised on the issue lies within us.

Minch Strait

Lord MacKenzie of Culkein: asked Her Majesty's Government:
	Why the Minch strait has not been designated a marine environmental high-risk area.

Baroness Crawley: My Lords, the criteria for identifying marine environmental high-risk areas, known as MEHRAs, were set out in the late Lord Donaldson's report, Safer Ships, Cleaner Seas. Although they are environmentally sensitive, the Minches did not meet those criteria because of the volume and type of shipping in the area and the protective measures that are already in place. However, in the light of more recent data, the UK will propose new protective routing measures for the Minches to the International Maritime Organisation this July.

Lord MacKenzie of Culkein: My Lords, I thank the Minister for that Answer. Is she aware of the disbelief in the Hebrides and the north-west Highlands at the Government's failure to designate the Minches as a marine environmental high-risk area? There is no question that the Government acknowledge the sensitivity of the Minches, and the late Lord Donaldson recommended that the Minches should be a MEHRA. It would have been a sensible belt-and-braces policy for the Government to designate the Minches as a MEHRA in addition to the protective measures already in place. There are huge environmental sensitivities in that area. Thousands of ships transit it with pretty awful cargos, including the MV "Jambo", which sank a couple of years ago, spilling huge amounts of zinc oxide into the sea. If the current environmental measures, which are almost all voluntary, do not prove to be effective, will the Government consider imposing further restrictive management measures, including giving the Minches an area-to-be-avoided status?

Baroness Crawley: My Lords, I appreciate my noble friend's concern, but I hope that I can reassure him. First, we do not plan to identify further MEHRAs. Identification of a MEHRA is important, but the practical measures that we are going to put in place are just as important. We have two proposals: one is the upgrading to IMO status of some recommended tracks through the narrows south of Shiant Islands; the other is the introduction of a new traffic separation scheme off Neist Point. Those practical measures and the automatic identification system now carried on many ships mean that the Minches will have as much robust protection as they could have had under a MEHRA.

The Earl of Mar and Kellie: My Lords, the designation sought is advisory and not very onerous. Is it true that the Secretary of State has not acted against tankers using the Minch because, among others, the Western Isles Council has expressed its concern to protect its undoubtedly beautiful western beaches from oil spills? Is that the right way to go about marine environmental protection in the Minch?

Baroness Crawley: My Lords, we have worked closely with the Western Isles Council, as we have with all the devolved authorities and the Scottish Executive. Of course, the final decision about the 32 MEHRAs and the MEHRAs in Scotland was agreed by the Scottish Executive. As the noble Earl will know, the methodology for deciding which areas of our coastline are to be MEHRAs is very robust. It has to ensure that there is assessment of the environmental sensitivity of the region, as he has set out, and the hazards from shipping—the possibility of collisions, groundings and so on.

Lord Geddes: My Lords, the noble Baroness referred to the IMO, an organisation, worthy though it is, not known for its lightning speed of reaction and response. To what extent are Her Majesty's Government able to take independent action in this respect and to what extent are they dependent on IMO approval?

Baroness Crawley: My Lords, the setting up of the 32 MEHRAs is a matter for the British Government. We are also within a protection zone of the IMO, but the setting up of these sensitive areas is a matter for us.

Lord Hanningfield: My Lords, the Minister suggested that there would be a much more rigidly enforced traffic separation system, but other such straits are covered by a radar system. Are there plans to introduce a suitable radar system to protect this valuable coastline?

Baroness Crawley: My Lords, it is worth noting that the Minches already benefit from an improved vessel traffic monitoring system because of the increased number of ships carrying the automatic identification systems. That, too, has an effect on enhancing the safety of navigation and providing additional protection for the waters and the coast around the Minches.

NHS: Cancer Plan

Baroness Sharples: asked Her Majesty's Government:
	What action they will take to ensure that the National Health Service cancer plan target for a maximum two-month wait from urgent general practitioner referral to treatment will be met for all cancer patients.

Lord Warner: My Lords, cancer patients are now being diagnosed and treated more quickly than ever before, with almost 97 per cent now receiving their first treatment within a month of diagnosis. The 62-day target from GP referral to treatment is challenging, but it has been achieved for breast cancer and for other cancers in some parts of the country. The NHS is working hard to ensure that this target will shortly be met for all cancer patients.

Baroness Sharples: My Lords, I thank the noble Lord for that reply. Is the information and advice given to GPs sufficient for them to decide whether a patient with cancer requires an urgent or a routine appointment at hospital?

Lord Warner: My Lords, we think that the advice is appropriate. It is kept under review by our medical advisers. The progress that has been made under this Government suggests that things are now working far better.

Earl Howe: My Lords, the Minister will know that the Public Accounts Committee in the other place found that the monitoring of performance against cancer plan targets by cancer networks was inconsistent and, in five cases, did not take place at all. Does the Minister think that that is acceptable? If he does not, what do the Government propose to do about it?

Lord Warner: My Lords, I understand that issues arising out of the PAC report are being considered carefully. We know that the all-London cancer networks have completed action plans to implement the recommendation of NICE guidance on supportive and palliative care, for example, over the next three years. Work is going on in that area.
	I remind the House that under this Government cancer patients are diagnosed and treated faster than ever before. In 1997, 63 per cent of patients with suspected cancer were seen by a specialist within two weeks of urgent referral by a GP: today, that figure is 99 per cent.

Baroness Neuberger: My Lords, will the Minister comment on the fact that while the referral rates have increased dramatically—a great cause of joy for many people—only 10 per cent of patients receive a record of significant matters discussed at their first diagnosis and at later key stages? Will the Government act to improve and monitor that while they continue to ratchet up referral times?

Lord Warner: My Lords, these are matters of clinical practice. I am sure that our national clinical director for cancer will be considering them and working with the NHS to try to improve performance in some of these areas.

Baroness Morgan of Drefelin: My Lords, is my noble friend aware that today, the All-Party Group on Cancer launched a report recognising the successes in cancer treatment and the achievements of the cancer plan? Will he welcome a debate on how to build on that success and how to revise and develop the cancer plan further? Does he agree that, although waiting time targets are a key driver for improving cancer services, they are complex and sometimes hard to define? Does he also agree that empowering patients more and ensuring that the time before research findings are used to patient benefit is reduced could further improve cancer services in the UK?

Lord Warner: My Lords, I am sure that the whole House welcomes the All-Party Group's document, A New Vision for Cancer, which is published today and the hard work that it has done in keeping cancer firmly on the agenda. We on the Front Benches are always willing to discuss whether we can secure improvements. We are only halfway through the 10-year cancer strategy and the general position is, "A lot done, still more to do".

Afghanistan: Death Penalty

The Lord Bishop of Oxford: asked Her Majesty's Government:
	What representations they are making to the Government of Afghanistan to prevent Muslim converts to Christianity in Afghanistan from being condemned to death.

Lord Triesman: My Lords, Abdul Rahman has been released. On 22 March, my honourable friend Kim Howells made a public statement expressing the Government's concerns over the charges facing Mr Rahman. On 23 March, my honourable friend Ian Pearson summoned the Afghan chargé to relay our concerns. The British Ambassador in Kabul also raised these concerns on that day with the Afghan Ministry of Foreign Affairs.

The Lord Bishop of Oxford: My Lords, I thank the Minister for his reply. Although it is good news that Mr Abdul Rahman has been released, it is rumoured that it was on grounds of mental health, about which we know nothing. Does the Minister not agree that a fundamental issue of principle is involved? The preamble to the 2004 Afghan constitution says that it will respect the UN Universal Declaration of Human Rights, Article 18 of which says that there must be freedom for people to change their religion. Does the Minister not agree that a fundamental issue of principle is involved and that concerted international action is needed?

Lord Triesman: My Lords, I agree with the right reverend Prelate. There are many stories in the media about the cause of the release, and I shall not speculate on them. I know that individuals should be free to practise their faith without restraint. The Afghan constitution provides for freedom of religion under Article 2, and Afghanistan is a signatory to the six principal international human rights treaties, including the ICCPR, which guarantee freedoms of religion. We should all apply pressure so that the country lives up to those expectations.

Lord Renton: My Lords, as Christians and Muslims each believe in one God, which must be the same God, how can they possibly justify the killing of other Christians and Muslims?

Lord Triesman: My Lords, I do not think it is for the Government to comment on any theological view of the identity of God, but there should be complete freedom in our world for people to practise their religion and to do so without threat or restraint.

Baroness Falkner of Margravine: My Lords, we welcome the efforts of Her Majesty's Government in support of the charges against Mr Rahman being dropped—we rejoice in his release—but does the Minister agree that there will continue to be a problem regarding the incompatibility between the Sharia code and some human rights norms? In addition, do the Government agree that the solution to this may be longer-term education? What are HMG doing to advance educational programmes in Afghanistan, in particular human rights programmes?

Lord Triesman: My Lords, extensive human rights programmes are funded by the United Kingdom Government in Afghanistan. I believe that I am right in saying that we are among the largest bilateral donors to those programmes. I shall not comment on the issues regarding the interpretation of Sharia law—it is not the place of any Minister in a government to do so—but I think that we should encourage Afghanistan to ensure that the provisions of its law and constitution ensure that the implementation of Sharia law accords in legal code terms with the international obligations to human rights law to which that country has signed up. That would be the basis on which proper progress can be made.

Lord Alton of Liverpool: My Lords, does not the Minister agree that the debate about Sharia law needs to be held when people face execution not just in Afghanistan, but elsewhere? Every man and woman has the right to hold the religious beliefs, or no beliefs, of their choice, as well as the right to change them if they so wish. In that respect, does not the Minister strongly welcome the sensitive debate initiated by the Prince of Wales recently in Cairo? Will he try to facilitate a dialogue between scholars in this country and from other western democracies with scholars from Islamic countries to explore the legitimate parameters of religious belief and the right of people to change their beliefs?

Lord Triesman: My Lords, in a recent debate in the House, the noble Baroness, Lady Rawlings, and I welcomed the statements of the Prince of Wales. I thought his words were timely and wise. Of course, we are root and branch opposed to capital punishment and the use of cruel and extreme punishments of all kinds. I shall not go through the full extent of some of those horrific punishments in this answer. It is an obligation on all of us to discuss them under whichever penal code they come up.
	Perhaps I may make this point to the House: of course, capital punishment comes up where Islamic law is concerned, but it also comes up where the United States is concerned. If we are against it, we are against it.

Lord Anderson of Swansea: My Lords, will my noble friend confirm that this stems from an interpretation of Sharia law and, even more important, that the problem is not confined to Afghanistan? Discrimination against apostasy can be found in most Muslim countries. Can we hope that the Minister is ready to make similar representations to other countries, including Pakistan and Iran, where Christians and others who convert from Islam face discrimination and penalties? Those countries are clearly in breach of the relevant provisions of the Universal Declaration of Human Rights, which most if not all of them have signed.

Lord Triesman: My Lords, in preparing for the Question I asked for details of all the countries in which we had made such representations. I have to confess that it is a depressingly long list, but we do make those representations. I am cautious about saying anything about the interpretations of apostasy under Sharia law. Obviously, we are concerned that people should not be persecuted because they have changed their religion. I understand that there is an active debate within Islam about whether apostasy is a matter dealt with in this world or in the next. I do not know that I have any greater wisdom to bring to the issue.

Lord Elton: My Lords, does the noble Lord agree that the release of Mr Abdul Rahman is not the end of his story? Can he tell us what protection has been given to him and whether he is remaining in a country where many hundreds of thousands of men think it is their duty to kill him?

Lord Triesman: My Lords, I said in an earlier response that I had heard a number of stories, some of them conflicting, about where and in what circumstances Mr Rahman is now. I am sure that the House will agree that it would be preferable if I did not speculate. The last thing that I want to do is make the situation worse.

Lord Tebbit: My Lords, is the Minister aware that I think I detected in his tone a note of well justified self-satisfaction—I do not mean that pejoratively—over the case? Would he expect governments in Afghanistan or other Muslim countries similarly to welcome it if those who chose to convert to the Muslim religion in this country escaped punishment only on the ground that they were declared to be insane?

Lord Triesman: My Lords, there is no self-satisfaction in this matter. When people are in danger because their fundamental human rights are being breached, there is an obligation on a government of our kind—it is true of governments of all kinds in recent British history—to intervene as best they can to protect that individual. I would like to believe that there would be no question in this country of anybody being put into any jeopardy because they chose Islam over Judaism or Christianity or any other religion. That is not our society or our culture. I am very thankful that that is the case.

Lord Avebury: My Lords, is the Minister aware that the British Council and DfID recently sponsored a study by the Ahmadu Bello University in northern Nigeria into women's rights and Sharia law? Therefore, he need not be so diffident about engaging in the general question that my noble friend put to him concerning the compatibility of the Sharia law with universal human rights. Would the Foreign Office engage in further studies of the kind that it has already conducted on women's rights in Nigeria?

Lord Triesman: My Lords, yes. My point is not that there should never be a discussion of Sharia or any other form of law, just that the fundamental obligations into which every nation enters when it signs up to international law on human rights form the fundamental basis on which they should conduct their legal processes. That is the only way in which there is a set of universal values about people's rights in all respects, including their religious rights. If we base ourselves on that foundation—set out, after all, in the charter of the United Nations—we will probably not go wrong.

Baroness Rawlings: My Lords, we on these Benches agree with the Minister, and we welcome the dismissal of Abdul Rahman's case, saving his life. Have Her Majesty's Government made any assessment of honour killings that occur as a result of changes to an individual's religion?

Lord Triesman: My Lords, we are alert to the risks of honour killings. They are risks that do not occur only outside the United Kingdom. A good deal of work has been done between the Foreign Office and the Home Office on forced marriages and the violence attendant on forced marriages, because it appears that at least some honour killings occur when people try to escape from the compulsion of a forced marriage. There is now a joint unit between the Foreign Office and the Home Office. We rescue—I use that word deliberately—between 200 and 250 people a year, worldwide, from those circumstances. It is a fundamental issue.

Lord Stoddart of Swindon: My Lords, is the Minister aware that many people will be quite surprised that British troops are in Afghanistan risking their lives to defend a system that goes back to the Dark Ages? Do we not have the right to make serious representations to the Afghan Government to see that this sort of thing does not happen again?

Lord Triesman: My Lords, the troops from the United Kingdom and from other countries are there to secure a democratic society in which people can freely live under a constitution that is committed to international law. Everybody in the international community is entitled to say, where they see human rights being breached, that they are opposed to it and to argue that, irrespective of whether they have troops in the country.

Cross-Border Insolvency Regulations 2006

Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc.) (No. 2) Order 2006

Renewables Obligation Order 2006

Communications Act 2003 (Maximum Penalty for Persistent Misuse of Network or Service) Order 2006

Lord McKenzie of Luton: My Lords, I beg to move the four Motions standing in my name on the Order Paper.
	Moved, That the draft regulations and orders laid before the House on 31 January, 28 February and 1 and 6 March be approved [17th, 20th and 21st Reports from the Joint Committee and 24th and 28th Reports from the Merits Committee] [Considered in Grand Committee on 22 March].—(Lord McKenzie of Luton.)

On Question, Motion agreed to.

Consolidated Fund (Appropriation) (No. 2) Bill

Lord McKenzie of Luton: My Lords, I beg to move that this Bill be now read a second time.
	Moved, That the Bill be now read a second time.—(Lord McKenzie of Luton.)
	On Question, Bill read a second time; Committee negatived.
	Then, Standing Order 47 having been dispensed with, Bill read a third time, and passed.

Identity Cards Bill

Baroness Scotland of Asthal: My Lords, I beg to move that the Commons reasons be now considered.

Moved accordingly, and, on Question, Motion agreed to.
	commons reasons
	[The page and line references are to Bill 28 as first printed for the Lords.]
	16 Clause 5, page 4, line 44, leave out "must" and insert "may, if the individual so chooses,"
	22 Clause 8, page 7, line 42, leave out "must" and insert "may, if the individual so chooses,"
	The Commons insist on their disagreement to Lords Amendments Nos. 16 and 22 but propose Amendments Nos. 22E and 22F in lieu—
	22E Page 7, line 38, after "accompanies" insert "or includes"
	22F Page 7, line 43, leave out from "manner" to the end and insert "ensure that an application to be issued with such a card accompanies or is included"
	The Lords do not insist on their Amendments Nos. 16 and 22, in respect of which the Commons have insisted on their disagreement, do disagree with the Commons in their Amendments Nos. 22E and 22F in lieu, and do propose Amendments Nos. 22G and 22H in lieu— 
	22G Page 4, line 44, after "individual" insert "and is made on or before 31st December 2011, that application may, if the individual so chooses, include an application by that individual to be entered in the Register.
	(2A) Where an application to be issued with a designated document is made by an individual and is made after 31st December 2011,"
	22H Page 7, line 42, leave out from "card" to end of line 2 on page 8 and insert "may, if the individual so chooses, in the prescribed manner, include an application to be issued with such a card in any application made by him to be issued with a designated document, where that application is made on or before 31st December 2011.
	(7A) An individual who is not already the holder of an ID card must, in the prescribed manner, include an application to be issued with such a card in any application made by him to be issued with a designated document, where that application is made after 31st December 2011."
	The Commons disagree to these amendments for the following reason—
	22GA & 22I Because the Commons do not consider it appropriate to delay until 1st January 2012 the commencement of the rule that a person applying for a designated document must at the same time apply to be entered in the Register and to have an ID Card issued to him

Baroness Scotland of Asthal: My Lords, I beg to move that the House do not insist on its Amendments Nos. 22G and 22H in lieu to which the Commons have disagreed for their reasons 22GA and 22I.
	I would very much like your Lordships to emulate the behaviour that we have just witnessed in the passing of the previous Bill. I invite your Lordships to follow suit.
	The Motion was agreed by the other place on Tuesday 21 March by a majority of 43 votes. I seek—I emphasise the word "seek"—to persuade your Lordships not to accept Motion A1 of the noble Lord, Lord Armstrong of Ilminster, which would amend Motion A by adding Amendments Nos. 22J and 22K.
	I listened very carefully to what the noble Lord, Lord Armstrong, said in our debate on 20 March and I undertake to listen very carefully again today to what he will say in support of his Motion. I am clearly very grateful to him for the time he has taken to consider this issue and to draft these amendments. I should say at once that I recognise that they are intended to be helpful in resolving the stalemate on this one final issue on the Identity Cards Bill and not to undermine the Government's plans for identity cards. I acknowledge that is the intention. Whether that is the effect, however, is, of course, another matter. However, while in theory an opt-out might well be preferable to an opt-in, the practical impact on delivering the identity card scheme would be much the same.
	The reason I cannot accept these new amendments is that they would have a very similar impact to the original Amendments Nos. 16 and 22 proposed by the noble Lord, Lord Phillips of Sudbury, but withdrawn by him on 20 March when he proposed Amendments Nos. 22G and 22H in lieu. I see the noble Lord nodding his assent in relation to that assessment. These later Amendments Nos. 22G and 22H recognise the principle of linking designated documents to identity cards, albeit with a time limit which would have delayed the automatic linkage between designated documents and identity cards.
	The debate when the Bill returned to the Commons on 21 March was essentially about the timing of implementing the requirement for people applying for a designated document such as a passport to register and obtain an identity card rather than the principle of doing so. That was certainly the line taken by the Liberal Democrat home affairs spokesman in the Commons, Mr Nick Clegg MP, during the debate in the other place on 21 March.
	The question now is whether these powers should be available straightaway or whether any delay should be imposed. Indeed, Mr Clegg said that in his view the amendment proposed by the noble Lord, Lord Armstrong, would,
	"blow a hole in the Bill"—[Official Report, Commons, 21/3/06; col. 192.].
	And so it does—it would put a coach and four through the Bill as it is currently before this House.
	As I made plain in debate on 20 March, the date of 31 December 2011 proposed by the noble Lord, Lord Phillips of Sudbury, is unacceptable to the Government. Such constraint on the linkage between designated documents and identity cards would introduce major uncertainties into our planning and create a high risk of additional costs. There would be delays not just in British passport holders being registered, but in foreign nationals being included on the national identity register.

Lord Phillips of Sudbury: My Lords, I thank the Minister for giving way. If I may just clarify, the effect of the amendment passed by this House last time would not have been to delay designation as such. However, a designation having been made, it would have meant that the citizen had an option—effectively, for five years—on whether he or she wished to have an ID card. The five-year period would mean that that option would end. It is important that that is understood.

Baroness Scotland of Asthal: My Lords, I understand entirely the way in which the noble Lord put it. We had an interesting debate on whether that was the effect and the costs that would flow from that position through having to develop two databases. We went through those issues quite fully. The noble Lord, as I understand it, is saying that, in principle, the connection in relation to designation was accepted and that the position was only in relation to when that would take effect and whether it would most probably follow another general election. However, the amendment with which we are dealing today puts us back to the position prior to the noble Lord's previous set of amendments and to where we were some considerable time ago when he was still arguing, as a matter of principle, that the designation should not be connected. I agree with the noble Lord in relation to that.
	Turning to the issue with which we are now dealing, the connection between those two elements is clear in our current structure. The situation is that it is intended that designated immigration documents—such as residence permits issued to foreign nationals as well as passports issued to British citizens—should have the designated connection. We are proposing that but it is being countered. The Government have already also made clear the intention to create a new agency, based on the United Kingdom Passport Service, which would be responsible for issuing passports and identity cards. The plans for that agency are predicated on the introduction of a seamless process for the issue of passports and identity cards as a single package. Any opt-out or opt-in would increase the complexity, and thus the uncertainty, of planning the rollout of identity cards.
	I explained the history from November 2003 to date on the last occasion. I will not weary the House with that again but I appreciate that the noble Lord, Lord Armstrong, has not necessarily been on that journey with us month by month. He has been deprived of that pleasure, but those of us who have taken that journey can remember it well. Issuing an identity card together with a passport does not require anyone to use that card unless they wish to do so. In fact, Clause 18 specifically prohibits any requirement to produce an identity card as the only proof of identity unless there is a specific provision—

Lord Tebbit: My Lords, I am most grateful to the Minister. If having an identity card imposes no obligation to use it, it would surely impose an obligation to notify the authorities at any time if one moved house. Is that not so?

Baroness Scotland of Asthal: My Lords, the noble Lord, Lord Tebbit, who has been on the journey with us, knows that there are a number of stages. When the card becomes compulsory for all, there will then be a provision obliging people to notify changes of address. We have already decided that the legislative vehicle to consider when that universal implementation of compulsory registration takes place should not be this vehicle but should be in the new Bill. At the moment, we are looking at one remaining issue—the linkage between the two documents. So that is a debate that I know the noble Lord is anxious to have. I am sure that he will be in his place when the date for it arrives and we will enjoy ourselves fully, but not now.

Lord Phillips of Sudbury: My Lords, I am terribly sorry to interrupt the noble Baroness again, but will she be so kind as to check her answer to the noble Lord, Lord Tebbit? My understanding is that Clause 12 is not delayed until full compulsion for the whole population. Clause 12 relates to notification of changes affecting the accuracy of the register for any individual having an ID card.

Baroness Scotland of Asthal: My Lords, as I understand it—and I look towards the Box—it is in relation to the sanctions. One of the issues here is that we are going back to debates that we had in Committee and on Report; and trying to truncate those conversations makes things incredibly difficult. We spent hours and hours trying to clarify this. Your Lordships will also remember that notification of changes of address is already in the legislation for driving licences. All of us who drive must notify the authorities of a change of address; that is not new. That is perhaps what I can best say on the issue. It is not new. We have had many debates on whether it should be in the Bill, but that is the position.

Lord Thomas of Gresford: My Lords, surely Clause 12 reads:
	"An individual to whom an ID card has been issued—
	that is voluntarily—
	"must notify the Secretary of State about . . . every prescribed change of circumstances affecting the information recorded about him".
	Subsection (6) says:
	"An individual who contravenes a requirement imposed on him by or under this section should be liable to a civil penalty not exceeding £1,000".
	If you register voluntarily and you do not tell them about your change of address, you are liable to a civil penalty of £1,000. Compulsory registration is neither here nor there.

Baroness Scotland of Asthal: My Lords, once you register you will have to tell the authorities about your new addresses. You will not have to register compulsorily; and we can go through that long debate that we had as to what is compulsion and what is not. Once you register, thereafter you will have to notify the authorities of your change of address. Only when everyone has to do that will it be compulsory within the Government's definition. I accept that we have had hours of debate, which I do not intend to go back over today, about whether, because the linkage is with the passport, that is compulsion. We say that it is not; others say that it is.

Lord Tebbit: My Lords, I am most grateful to the noble Baroness for giving way again. I put to her the short formulation for the reply that she wants to make—"Lord Tebbit was right, wasn't he?".

Baroness Scotland of Asthal: My Lords, if that is the only satisfaction that the noble Lord will get today, I am quite happy to say "Yes".

Noble Lords: Oh!

Baroness Scotland of Asthal: My Lords, that shortens it. We can telegraphically impose all the debates that we have had about those issues into that one answer. With the leave of your Lordships, if I can be allowed, I will move on.
	The Government, in making the connection of issuing an identity card together with a passport, do not require the use of the identity card unless someone wishes to do so. That remains the same, and that is something on which we can all agree.

Lord Thomas of Gresford: My Lords, will the noble Baroness give way?

Baroness Scotland of Asthal: My Lords, I do not intend to give way. I have given way so many times. It is only right that I should make the comments that I have to make. Then I will be more than happy to sit quietly and listen with the utmost care to every pearl of wisdom that drops from the noble Lord's mouth.
	In fact, the Identity Cards Bill has a specific prohibition in Clause 18 on any requirement to produce an identity card as the only proof of identity unless specific provision is made in future legislation that an identity card must be produced or it is later made compulsory to hold an identity card. Furthermore, it has been confirmed by my right honourable friend the Home Secretary that anyone who feels strongly enough about the linkage not to want to be issued with an identity card in the initial phase will be free to surrender their existing passport and apply for a new passport before the designating order takes effect.
	So although, as I indicated last time, we doubt whether many people would want to go to such lengths simply to avoid the opportunity of obtaining an identity card when renewing their passport, that facility is of course available to them. While the attention is on the designation power, I hope your Lordships will concede that the Government have already conceded to the Opposition's wish for regular reports to be published of the estimated costs of introducing identity cards. We have also conceded that fresh primary legislation must be required before it could be made compulsory to register. We have also accepted the removal from the Bill of provisions in Clauses 6 and 7, which would have enabled compulsory registration to be introduced by secondary legislation using a super-affirmative resolution order procedure with a civil financial penalty for failure to do so.
	We have already made all those concessions to your Lordships and to the other place and we have never made a secret of the fact that ultimately this is designed to be a universal scheme. A scheme in which anyone could opt out would of course satisfy those who believe that the current provisions are a threat to ancient liberties, but it would also play into the hands of those who want to keep their identity secret for far murkier purposes; perhaps because they are engaged in identity fraud or illegal immigration. Even many of those opposed to identity cards in principle admit that a scheme that is wholly voluntary cannot be effective.
	I am grateful to the noble Lord, Lord Armstrong, for trying to help us resolve this impasse by tabling Motion A1. However, I am afraid that I do not think that Amendments Nos. 22J and 22K will assist us in finding a resolution between the Commons and the Lords on the final shape of the Identity Cards Bill. I know that as a former accounting officer at the Home Office the noble Lord, Lord Armstrong, will understand that we have to avoid introducing uncertainty into the plans for rolling out identity cards linked to passports and any risk that that would increase costs and delay benefits to the taxpayer. Those are important issues. For those reasons the Government cannot accept the amendments.
	The removal of the automatic link between identity cards and designated documents would mean that it would be much harder to predict the volume of applications for identity cards during the first few years of the scheme. That could lead to less reliable demand during the initial period and so bidders would be likely to introduce a risk premium in their price, which would then mean less value for money for the taxpayer and higher unit costs. It could also mean that the final rollout of the scheme and the move to compulsion would be delayed. That would itself delay the realisation of benefits, including all the wider public interest benefits of identity cards, such as assisting in the prevention and detection of crime and the enforcement of immigration controls.
	I accept that for some the purpose of the amendments would be simply to cause that delay. We have to question whether that is a proper thing for this House to seek to do. Parliament has spent many hours debating the Bill. Leaving aside the discussions of the draft Bill and the debates on the earlier Bill introduced before the election, the other place spent 39 hours discussing the Bill before passing it on to us in October. The Committee stage there involved 11 sittings over seven days. It has been suggested by some, particularly by Members opposite, that the mandatory link between designated documents and ID cards was not sufficiently debated in the other place. But I can assure your Lordships that amendments almost identical to those tabled in our earlier proceedings by the noble Lord, Lord Phillips, were debated and rejected in Divisions in Commons Committee twice—once on the Bill that fell before the election and once on this Bill—and at Commons Report.
	We in this House scrutinised the Bill in all its stages for a total of 61 hours, including, as noble Lords will remember with pleasure, six days in Committee and three days on Report. Since then, a further 16 hours of parliamentary time have been taken up as each House considers the other's amendments and reasons. The principle of a mandatory link between designated documents and ID cards has been debated, voted on and amendments from this House rejected four times by the elected House. I must ask again that your Lordships' House should accept the will of the elected House.
	I have to tell your Lordships that I am personally deeply troubled by what we are now doing in this House. Whether we like the contents of a government's Bill or not, the other place—not we—has the mandate of the people of this country. We are entitled to ask it to think again, as we have done four times. It has given us its answer with very great clarity. We need to think long and hard about the constitutional nature of what we now do. This House has a high and well deserved reputation. I would like to see us keep it.
	Moved, That the House do not insist on its Amendments Nos. 22G and 22H in lieu to which the Commons have disagreed for their reasons 22GA and 22I.—(Baroness Scotland of Asthal.)

Lord Armstrong of Ilminster: rose to move, as an amendment to Motion A, at end insert "but do propose Amendments Nos. 22J and 22K in lieu".
	22J Clause 5, page 4, line 44, leave out from "individual" to end of line 4 on page 5 and insert—
	"(a) if the individual is not already entered in the Register, his application for a designated document must include or be accompanied by an application by that individual to be entered in the Register unless he has stated in or with his application for a designated document that he does not wish to apply to be entered in the Register;
	(b) if the individual is already entered in the Register, his application for a designated document must either state that he is already entered in the Register and confirm the contents of his entry or state that he is entered in the Register and confirm the contents of his entry subject to the changes notified in the application."
	22K Clause 8, page 8, line 2, after "document" insert "in which he has not included or which is not accompanied by a statement in accordance with section 5(2) that he does not wish to be entered in the Register"

Lord Armstrong of Ilminster: My Lords, I should declare a personal interest. My existing passport expires in 2008. If the Identity Cards Bill enters the statute book with the amendments that I have proposed, and if passports have been designated for the purposes of the Act by the time I apply for a new passport, I shall have the option to state that I do not wish to apply for my name to be entered in the register. I assure your Lordships that I am not moving these amendments in order to give myself that option. I should be minded not to exercise that option if and when the opportunity arises.
	I also assure your Lordships, and particularly the noble Baroness, Lady Scotland, that in proposing these amendments I am not seeking to make some kind of mischief. I have no ulterior purpose to delay the progress of the Bill on to the statute book; indeed, my purpose is to expedite that progress. I am trying to find a way of avoiding the use of the Parliament Act to force the Bill through, because I do not think that this is an issue on which it would be appropriate to have recourse to the Parliament Act. The Bill will reach the statute book more quickly if recourse to the Parliament Act can be avoided.
	The Bill as drafted says that anyone applying for a passport or other designated document whose name is not entered in the national identity register "must" apply to have his name entered in the register and to receive an identity card. Previous amendments proposed by the noble Lord, Lord Phillips of Sudbury, and rejected in another place said that anyone applying for a designated document "may", if he so wishes, also apply to have his name entered in the register. In other words, he could opt into the register and receive an identity card if he wished to do so, otherwise his name would not be entered in the register and he would not receive an identity card. With my amendment, it is not a question of opting in; it is a question of opting out. My amendments would have the effect of requiring anyone applying for a designated document to apply to have his name entered in the register unless he states that he does not wish so to apply. In other words, he could opt out if he wished to do so; otherwise he would have to apply—have to apply—to have his name entered in the register.
	I was glad to note that, in the debate in the other place last week, the Secretary of State welcomed my intervention in our debate of 20 March as being helpful. It seems to me that my amendments would give the Government a great deal of what they want. The presumption would be that when someone applied for a designated document, he would also apply to have his name entered in the register. That would be, if you like, the line of least resistance—one might say, the default course. It would require a positive act to opt out, not a positive act to opt in.
	Like the noble Baroness, Lady Scotland, I believe that most people applying for passports would be content to have their names entered in the register, as I would myself. No doubt, however, there would be some who, for whatever reasons—and not all of them discreditable—did not wish their names to be entered in the register. I believe that they would be relatively few.
	The resolution of this issue by opting out rather than opting in would not be as neat and tidy as making it compulsory for someone to apply to have his name entered in the register if he is applying for a designated document. But there is an issue of personal freedom that should not be brushed aside as being of no consequence. I shall not enter into a learned discussion about what the Labour manifesto said or did not say at the previous general election, or what it meant or did not mean. If I may be forgiven for saying so, I have spent enough time in my earlier life trying to understand and interpret the subtleties of party manifestos, and I do not desire or need to revert to that occupation now.
	There are a good many people out there who genuinely thought that the Government were proposing a voluntary scheme, and they were prepared to go along with it on that understanding and the prospect of later legislation to introduce compulsion. My amendments would restore an element of voluntariness—of personal freedom—which is absent from the Government's proposals. I understand that it might complicate administration and add to costs to allow people to opt out, as I propose. There is no knowing what the extra costs would be. However, with respect to the noble Baroness, to say that it puts a coach and horses through the legislation is something of an exaggeration. Compared with the total costs of the identity card scheme, the extra cost would be negligible, or at any rate relatively marginal. The preservation of a measure of personal freedom is surely worth some cost and some administrative untidiness.
	As the noble Baroness reminded us again just now, anyone who feels strongly enough about the linkage and does not want to be issued with an ID card in the initial phase will be free to surrender their existing passport and apply for a new passport before the designation order takes effect. Why should someone who feels strongly enough about the linkage be obliged to follow the roundabout device of giving up his passport prematurely and applying for a new one some time before his existing passport runs out, thus incurring the cost of renewing his passport before he needs to do so? Why is that preferable to the straightforward course of giving him a right to opt out of having his name entered in the register when the time comes for him to renew his passport when the old one reaches its expiry date in the usual way?
	As I said, I believe that relatively few people would take up the opportunity to opt out—the force of inertia would see to that. I saw an article in a newspaper on Sunday suggesting that the Government's position in this matter is motivated less by considerations of cost and administrative tidiness than by a desire to fit in with the proposed directive by the European Commission to require the introduction of biometric passports by the Schengen countries. I understand that this directive, as presently envisaged, would not apply to the United Kingdom. But it would no doubt be convenient if this country were in step with the Schengen countries in the timing of the introduction of biometric passports. But even if that argument were accepted as valid, it is not immediately clear why the introduction of biometric passports in the Schengen countries should make it necessary to compel applicants for United Kingdom passports to apply to be entered on the national identity register.
	Moreover, the timetable for the issue and coming into force of the European directive seems to be quite uncertain. At this early stage, I suggest that it would be the triumph of hope over experience if we were to assume that the directive would come into force on the date now suggested for it. This suggests to me that the sensible course would be to accept my amendments now and let the Bill proceed accordingly. If and when the European directive comes into effect, or if it proves that the number of people opting out under these amendments is in practice negligible, it would not be difficult for the government of the day to introduce further legislation to amend the Act so as to reverse these amendments and restore an automatic link between applying for the designated document and applying to have one's name entered on the register. Indeed, the Government could perhaps use for this purpose the further legislation for which it is already agreed that there will be a need. Alternatively, if these amendments seem to provide a basis for resolving the matter, I should be ready to consider incorporating a sunset date for return to the automatic link on the lines suggested previously by the noble Lord, Lord Phillips of Sudbury.
	In the mean time, I believe that the Government would get and deserve credit for the retention of a degree of personal freedom in this matter. If your Lordships were to approve the Motion which I propose, that should not be seen as defeat for the Government or victory for the Opposition. That is certainly not my intention. On the contrary, I would hope that both the government and the opposition parties might see what I propose as a no doubt imperfect but none the less acceptable compromise, as going some way towards meeting genuinely held misgivings, as obviating the need to have recourse to the Parliament Act and as ensuring the early passage of the Bill. I beg to move.
	Moved, as an amendment to Motion A, at end insert "but do propose Amendments 22J and 22K in lieu".—(Lord Armstrong of Ilminster.)

Baroness Anelay of St Johns: My Lords, I support the Motion of the noble Lord, Lord Armstrong of Ilminster, and oppose the Government's Motion. Motion A1 offers the Government an honourable and reasonable compromise. It comes as near as possible to giving the Government what they say they need while preserving, with the opt-out provision, the vital element of personal freedom to which the noble Lord, Lord Armstrong, has referred.
	The Home Secretary said last week that he welcomed the helpful intervention of the noble Lord, Lord Armstrong of Ilminster, and that he was grateful to him for his efforts to resolve the impasse on the matter of compulsion in the initial stage of rolling out the national register and ID card scheme. We, too, are grateful to him. He has taken a most constructive course and we give him our full support.
	As has been explained by the noble Lord and the Minister, last week we offered a different compromise to the Government, but they rejected it, despite the fact that we had tried to move a significant way towards the Government's position. The Government offered no hope of any discussions on a compromise that might resolve the impasse that we faced. We could have insisted today upon that amendment. However, we decided that it was far better to show even further flexibility by supporting the approach of the noble Lord, Lord Armstrong. His approach endorses the principle that we have espoused throughout our debates on the Bill: that it would be wrong to make the right to leave this country for all those who need a new passport conditional upon succumbing to the compulsion to be entered on the national identity register and by an ID card.
	As the Minister said, our debates have been long and complex. However, personal freedom is a matter of the utmost importance to all of us, so it is right to have taken time. I have made it clear throughout our debates on this Bill that we are seeking to reach agreement with the Government on this matter, and we remain resolved to do so.
	The Home Secretary and the Minister have claimed that this amendment would have the same defect as that offered by the House last week: it would introduce a degree of uncertainty into the plans for rolling out ID cards on a compulsory basis linked to a person's application for a passport. But the Home Secretary has himself introduced a greater element of uncertainty by advising those who want to escape compulsion in this initial stage to surrender their existing passport and apply for a new one before the designation order takes effect. The Minister referred to that advice again today.
	Let us put aside the obvious financial penalty that would be imposed on a family who have a long period to run on their existing passports, and would, under the Home Secretary's advice, have to stump up the cost of new passports earlier than they expected. The fact is that the Home Secretary himself proposed to put more uncertainty into the system, because his advice maintains the need for two databases for a longer period. Last week, I pointed out that the Government's own position on the number of databases is obscure. Neither the Minister, nor the Home Secretary in another place, rebutted those arguments.
	The Government's system of compulsion by stealth in the initial period has real complexity in its arrangements. It must enable those who do not need a passport to sign up for an ID card. There will have to be a record of those true volunteers, in addition to those who are forced to have an ID card if they need to travel abroad for work or to visit their relatives. There is also still some confusion over whether the Government intend to adapt the passport system into the proposed national identity register; whether a separate NIR would ultimately replace the passport system; or whether the two would co-exist.
	Whatever the decision, it is clear that the ID scheme would involve multiple systems developed over time to achieve multiple functions. During our debates last week, I pointed out that the Government's policy on how they would run the scheme is still evolving. Instead of the system the Government talked about in both Houses, whereby verification of identity would be by electronic readers, Mr Burnham now says that the Government plan to use the chip and PIN system at first.
	Are the Government still making up their ID card policy on a daily basis? Well, indeed, they are. A peek at the Guardian last Thursday proved that. Health officials have now revealed that the personal data gathered on all of us could be held by several different companies, rather than in one central government database. That is one more dramatic change from the information given to us in our long debates on the Bill. It is clear that the Government have not yet determined the initial architecture of the IT system; but, as I said before, I am not necessarily criticising them for that—it may be no bad thing. If the Government are prepared to take the time to consider carefully a more effective, reliable and fair system, I would welcome that—and so, I think, would the majority of Members of this House.
	The noble Lord, Lord Armstrong, has shown us that we could find a sensible compromise on the matter of the promised voluntary rollout, as against the threatened compulsion in the initial stages. The Government's own Back-Benchers in another place advised the Government last Tuesday to adopt a compromise approach if this House returned the Bill to another place once more. I hope that the Government take the advice of their Back-Bench colleagues to heart, even if they continue to ignore me. I remain an optimist. I believe that there are always reasonable and honourable solutions to problems. It is right to take the time, now, and act in good faith to find those solutions.
	The noble Lord, Lord Armstrong, has had the most distinguished career. His expertise in reaching sensible solutions to seemingly intractable problems is second to none. His solution seems startlingly obvious. It is simple; it is just; it is fair. It is a very British compromise. I trust him, and will support him as he assists us all today to reach a solution to the problems we face.
	When the Minister made her introductory remarks today, she carefully pointed out that the Government rejected this amendment, and gave the reasons for doing so. But she also said, very carefully, that she would listen to what the noble Lord, Lord Armstrong, said. I thought that was a constructive approach. If the Minister remains unable to join in the spirit of compromise offered with this Cross-Bench amendment, I shall strongly support the noble Lord, Lord Armstrong, in the Lobby, and I will urge all my noble friends to join me.

Lord Phillips of Sudbury: My Lords, I, too, thank the noble Lord, Lord Thompson of Ilminster, very heartily.

Noble Lords: Armstrong!

Lord Phillips of Sudbury: My Lords, I apologise.

A noble Lord: Identity fraud!

Lord Phillips of Sudbury: My Lords, I am most grateful to the noble Lord, Lord Armstrong. He has released me from my impalement on an amendment that I have moved four times. I was only too happy to see his name on the Marshalled List today. For all the reasons that he so reasonably gave in a remarkably reasonable justification, I urge the House to support him in the amendment.
	I merely want to add two or three points to what has been said. The noble Baroness, Lady Scotland, referred, perfectly fairly, to the laborious consideration given to the Bill in this place. It comes to 76 hours, and I am so deranged as to have spent 75 hours and 55 minutes of those 76 hours sitting in my place. None the less, it has been a House of Lords exercise of which we should be proud. This is not any old Bill. It is a Bill that has the widest ramifications of cost, longevity, scope and, above all—echoing the remarks of the noble Lord, Lord Armstrong—in terms of the citizen's liberty and the relationship between the citizen and the state. I note that the Minister did not refer to any of those issues. Maybe that is right, maybe it is not. It may be a reflection of an increasing sensitivity in this Government to what might be called the "liberty issues" in relation to this massive scheme.
	To those on the other side of the House who have said that we on these Benches have opposed the Bill root and branch, I would add the following fact: we have put forward 150 or so amendments to the Bill and roughly 40 of them have been accepted by the Government as ameliorating amendments. Indeed, the noble Lord, Lord Bassam, was kind enough to compliment our efforts when we reached the end of Report stage. Any suggestion that the amendments that have been tabled hitherto, let alone the amendment that has been tabled today, were produced in a wrecking spirit cannot be substantiated.
	I accept that a Bill that started in the other place, and that has been considered as much as it has in this place, must reach the statute book. One single issue remains that prevents it reaching the statute book. The argument is made that it is wrong of us to persist in our constitutional objection and that we are wrong on constitutional grounds. Indeed, it was suggested last week that we are in some sort of constitutional crisis. There is not much sign of it in the media. I am not sure how much, if any, notice this debate will receive in the media, but as long as they remember that the ping comes from here and the pong from the other place, I am happy.
	This is the fifth time that we have sent the Bill back. This is a sensible and cautious House. The Cross Benches are highly sensitive to charges of an excess of partisan zeal. Therefore, why are we here again, in large numbers and led by a Cross-Bencher? It comes down to one fact, and, in saying that, I do not override the basic objection enunciated by the noble Lord, Lord Armstrong. On Sunday, Geoff Hoon, the Leader of the Commons, said in an interview with Sky News Sunday programme:
	"But it's always been recognised, indeed said to be a convention of the constitution, that once a government puts into its manifesto a particular proposal, then the House of Lords would not stand in the way of that proposal becoming law.
	That's one of the problems we have with ID cards. We set that out clearly in the manifesto last May—it was voted for by the British people".
	Like heck it was; but what was voted for?
	"We will introduce ID cards . . . rolling out initially on a voluntary basis as people renew their passports".
	Others have been saying—and the Minister, Andy Burnham, said it this week—"Actually forget the manifesto. What you must look at is the Bill that preceded the manifesto and the Bill that succeeded the manifesto. That is what you must look at". That is not what the convention is. That is not what Geoffrey Hoon said—and rightly said. The trouble with Mr Hoon is that he had not read his own manifesto, or he would not have dared advance the case that, "We set that out clearly in the manifesto". Yes, they set it out clearly. The thing that sticks in the gullets of the majority in this House is the thought that we are doing our duty to support an act of dishonour by the other place in relation to a manifesto. How can it conceivably be a convention that this House should underpin a policy and a piece of legislation within months of an election where the Government explicitly said:
	"We will introduce ID cards . . . rolling out initially on a voluntary basis as people renew their passports".
	I know that noble Lords opposite do not like those words being mentioned. But they are at the heart of the constitutional feeling on this side of the House that this is not an occasion—and I agree absolutely with the assertion of the noble Lord, Lord Armstrong—on which we should be inhibited in resisting this single but vital aspect of the Bill.
	Finally, I would just say that events shift and uncertainties seem to breed. For those of your Lordships who think that this uniquely large and comprehensive ID card scheme is a well considered, well-founded and well constructed plan of campaign, I beg you to read the 42 pages of witness statements given to the House of Commons Science and Technology Committee last week, published yesterday, and if any of your Lordships really think, quite apart from any other issues, that this is a ship on which to sail on the high seas, I can only think that we inhabit different realms.
	So, it is with great enthusiasm that I support the amendment moved by the noble Lord, Lord Armstrong of Ilminster.

Lord Richard: My Lords, before the noble Lord sits down, perhaps I may ask him a question. Does he support the suggestion made by the noble Lord, Lord Armstrong, that his suggestions should contain a sunset clause; and, if so, for how long does he think the sunset clause should be?

Lord Phillips of Sudbury: My Lords, that is a perfectly fair question, and I will answer it directly. I think that the noble Lord was right in suggesting a sunset clause. In some senses his amendment today is less of a compromise than the one I put forward, which was accepted by the House last week. I would not start bandying times with the noble Lord, Lord Richard, across the House, but what I believe absolutely is that on any basis it would be wrong to allow the compulsory link between ID cards and passports to be brought into effect before the next election. The next election must be held, I think I am right in saying, by May 2010. But that is as far as I can go—and that is generous.

Lord Barnett: My Lords, I very much share the sympathy that my right honourable friend the Home Secretary expressed for the attempt by the noble Lord, Lord Armstrong, to find a compromise. Anyone who knows the noble Lord will not only have sympathy for his proposal but huge respect for everything that he has ever done. The noble Lord—I nearly called him my noble friend because he sits on my Bench—made it quite clear that he was not attempting to make any mischief with the Bill or the Government. Of course, one enormously respects that view and his view about personal freedom. I have on occasion expressed my views about parts of the Bill myself. In normal circumstances, I could well have been tempted to vote for the noble Lord's proposal.
	But these are not normal circumstances. This is the fourth time that your Lordships' House has rejected the elected House's view. One cannot help wondering, in parentheses, if 70 per cent of your Lordships were elected, how many times they would try to block the other elected Chamber. I am not sure how many of us would be here, because 70 per cent of us would presumably go—I am not sure how.
	The Home Secretary has been prayed in aid of the view of the noble Lord, Lord Armstrong. In fact, although welcoming what my right honourable friend described as the "helpful intervention" of the noble Lord, he continued:
	"I understand the reasoning behind Lord Armstrong's proposal and am very grateful to him for his efforts to help to resolve the impasse. However, I have to say that while I agree that an opt-out might well make more sense than an opt-in, the reality would be the same. We would still be introducing a large degree of uncertainty into the plans for rolling out identity cards".—[Official Report, Commons, 21/3/06; col. 182.]
	That was really the Home Secretary's view. Anyone who knows anything about the Bill is bound to agree with that.
	Most of all, despite my huge respect for the noble Lord, I am extremely disappointed that he has sought to move the amendment. It would never have occurred to me to describe the noble Lord as na-ve. All my experience of him in government is far from that. But he must have seen beforehand that he was being used by the Opposition. If he did not see that beforehand, he must have seen it today. For a distinguished nominated Member of your Lordships' House to move for the fifth time to disagree with the elected House would not be sensible. It would be quite wrong. I hope that, on reflection, he will not seek to press the Motion.

Lord Saatchi: My Lords, in her closing remarks this afternoon, the noble Baroness took a small step from persuasion to coercion. I think I may summarise her message as: "Come to your senses. Resistance is futile. You know the penalty". She acts as though any minute now she is going to reach into some dusty drawer of history and pull out a barnacled old stick called the Parliament Act, wave it in front of our faces and watch us run for cover.
	What is that ultimate deterrent, before which we so tremble? I stand to be corrected by noble and learned Lords, but I believe that a judge, before determining a point of law, considers what was in the mind of the lawmaker when the law was made. My noble friend Lord Kingsland, the shadow Lord Chancellor, tells me that the exact phrase is that the judge tries to discern the intention of Parliament when the law was made. So I wonder whether I can take the Minister back to 2 March 1911, when the Parliament Act was being considered. The then Liberal Prime Minister, Mr Asquith, is commending the Parliament Bill to another place on its Second Reading. He describes his intention very clearly:
	"Take the hereditary principle. What can we get out of it? Hon. Gentlemen opposite have got a great deal out of it . . . a working instrument to frustrate and nullify the functions of this House when there is a Liberal Government in power . . . That is what the right hon. Gentleman gets out of it".
	The right honourable Gentleman was Mr Balfour, the leader of the Conservative opposition.
	The Prime Minister then told the House the precise purpose of the Parliament Bill. Speaking of the hereditary principle, he said:
	"Let it not be our master. So say we. It is because it has been our master . . . because it enslaves and fetters the free action of this House, that we have put these proposals before the House and we mean to carry them into law".—[Official Report, Commons, 2/3/11; col. 584.]
	Winston Churchill was in no doubt about the intention of the Parliament Bill. Campaigning for it around the country, he asked:
	"Why should their children govern our children? Why should the sons and the grandsons and the great grandsons have legislative functions?".
	He said he hoped that the Bill would be,
	"fatal to the hereditary House of Lords".
	But, of course, the hereditary House of Lords is dead; the Government killed it in the House of Lords Act 1999. That was why the noble Baroness, Lady Jay of Paddington, then the Leader of your Lordships' House, speaking during the passage of the House of Lords Act 1999, said that the reformed House—our House today—would be,
	"more democratic, more legitimate, more authoritative".
	That was also why the then Attorney-General, the much lamented late Lord Williams of Mostyn said that the present House of Lords—our House—
	"will be better equipped, more democratic, more legitimate".
	The record seems to show that this intimidating Act has been overtaken by events. It may still have legal authority—others will know better than I do—but it lost its moral authority when the Government removed the hereditary Peers from your Lordships' House.

Lord Eatwell: My Lords, is the noble Lord proposing that hereditary Peers who remain in this House should not vote in any Division?

Lord Saatchi: My Lords, I think I am fairly and exactly quoting what was said at the time in justification of the removal of the hereditary Peers.
	Will the Minister consider taking advice from me? Probably not, but if she did, it would be this. Put the stick away and take advice from my noble friend Lady Anelay. Take your colleagues, special advisers and officials to a nice country house hotel over Easter, make a day of it and then return to your Lordships' House with something new to say that did not dwell on the past in the way in which I said the Government do at the moment. If she will not take my advice and look a little more to the future, will she take the advice of her own Prime Minister, whose favourite phrase was, I believe, "Forward, not back"?

Lord Stoddart of Swindon: My Lords, I do not think that the noble Lord, Lord Armstrong of Ilminster, was being na-ve or was being used when he tabled the amendment. It is a perfectly respectable amendment—I speak as one who has taken part in most, if not all, of the debates during the passage of the Bill. As it happens, I believe it is a very weak amendment which, if they had any sense, the Government would accept with open arms, because there is a precedent in the trade union movement for opting out of the political levy. Members, particularly on the Labour side of the House, will have a lot of experience of this, and they will know that the system for making political contributions to the Labour Party was accompanied, until quite recently, by the opportunity for people to opt out of the political levy. Of course, the number of people who opted out was so infinitesimal as to be almost imperceptible. If the Home Secretary wants to finish this debate with honour, I would recommend that the Government accept this amendment quickly, before it is withdrawn.

Lord Turnbull: My Lords, I, too, recognise the good faith of my noble friend Lord Armstrong in moving this amendment. Since he is a predecessor but two of mine, I could not do anything else. Opt-outs have a long and honourable pedigree. The whole of our economic policy is currently based on one. Equally, I am not happy with a position in which, for an unnamed period, we have two kinds of passport in circulation: let us call them "registered" and "unregistered".
	My noble friend Lord Armstrong hinted at a possible solution. The amendment was presented as though one change was being made from the previous proposal offered by the noble Lord, Lord Phillips; a change from opting in to opting out. In fact, two changes were made; the other being the removal of a time limit. The obvious question is whether there is a solution which combines the two effects—an opt-out and a time limit.

Lord Young of Norwood Green: My Lords, I hesitate to intervene, but I want to on this occasion. In my time, I have constructed a fair few amendments, some of which had completely honourable intentions and some of which were, quite frankly, wrecking amendments. With due respect to the noble Lord, Lord Armstrong, it does not matter whether his intentions are honourable or dishonourable—I assume that they are honourable—but it is the effect of the amendment that matters. As the noble Baroness, Lady Scotland, rightly said, the effect of the amendment is that of a wrecking amendment. It drives a coach and horses through the Bill, which is why it is being so eagerly embraced by the Opposition. To say that the Government have been unhelpful, while recognising that 40 ameliorating amendments have been accepted, seems to be a contradiction in terms.
	One noble Lord has said that it is a weak amendment, but noble Lords will notice that he seized it with alacrity. But is that surprising? What is the noble Lord's standpoint? He is opposed to identity cards. I have listened, along with many others, not to all the debate. I have listened to comments about the loss of personal freedom and civil liberties. In any civil society there is a balance between the collective good and individual freedoms. Otherwise, we would have none of these controls. We would not have national insurance numbers, passports or driving licences. There is always a balance to be struck.
	I am absolutely bemused. In the current climate, we know that identity fraud is rife and that passports are forged with gay abandon and lead, often, to terrible circumstances. Yet we seem to think that this is a matter of small import and can laugh over it: recent events give us no worry or cause for concern whatever. No one deludes themselves by imagining that an identity card will solve all those problems; but it will, sure enough, make it a damn sight harder to commit these frauds.
	I was interested when the noble Lord, Lord Armstrong, said that most people would be content with an opt-out but some would not. Not all those people will be discreditable, but some of them will be discreditable. We have to guard against that, unfortunately, in today's society. If I thought that this was a helpful amendment which would safeguard the civil liberties of the people of this country, I would be minded to support it. But I am afraid that I do not. The intentions matter not a jot: it is the effect of the amendment that matters. I hope that we will recognise the primacy of the other place and oppose this amendment.

Baroness Scotland of Asthal: My Lords, I agree with what has just been said by my noble friend Lord Young and say to the noble Lord, Lord Armstrong, that I absolutely understand the import of his amendment. His desire is to achieve what some would say is almost an impossibility: to find a compromise between "may" and "must". How do we do that? The House must now deal with the fact that it is impossible.
	I say to the noble Lord, Lord Saatchi, that when I made my comments I was not talking about the Parliament Act; I was talking about something far more precious and important. Over the years, this House has rightly grown in stature. It has grown in stature because of its acuity in looking at some of the issues; its good sense; its proportionality; and its balance. This House has—certainly since I have been privileged to be in it—shown sound judgment. We know when to push. We know when to test. We know when to challenge. But we also know when to desist. This is the first time in a very long time when I genuinely believe that this House may be in danger of losing that balance. It is important not just for this Bill—this Bill will come and it will go—but for all the other Bills.
	The noble Baroness, Lady Anelay, and I have had the privilege of dealing with Bill after Bill. We know the consequence of lack of judgment. We know the consequence of lack of moderation. We know that in the years to come we will pay for those issues on which we have failed to demonstrate judgment. That is why I say from this Dispatch Box, not simply as the Minister, the spokesman for this Bill, but as a Member of this House that I fear for us. I fear for us because people will look at what we do today. They will look at the fact that all of us are unelected, whether we be hereditary Peers or no—and the 92 hereditary Peers who remain in this transitional House are still hereditary for all that. There are those who say that this House should not be because we do not have the right to hold up legislation in a way that is improper. There will be those who will use this opportunity against this House.
	I do not hesitate to tell your Lordships that over the years I have grown to have enormous respect for this House and for its work. When we trespass in such a way that we challenge the high regard in which we are held, I tremble for us. I say to this House, not because of the content of this Bill, but because of the enormity of what we do, we have to understand it.
	Members opposite aspire one day to govern this country. This is about governance; we have to govern in the interests of the people of this country. I look to the noble Lord, Lord Phillips of Sudbury, and to the noble Baroness, Lady Anelay, who commented on the manifesto and the general election. I say to the noble Lord, Lord Phillips, that I believe we made it clear. Let me help him as to why. During the general election campaign, my right honourable friend the Prime Minister stated that the Identity Cards Bill would be reintroduced. A clear reference was made to the fact that the Bill which fell at the election would be brought back, including the provisions on designation.
	For these reasons, I believe that there never was any doubt about our plans. Indeed, our plans were so clearly understood by the Liberal Democrats that on page 12 of their election manifesto, the manifesto which they took to the people of this country, they made the following claim. The Liberal Democrats said that "they"—meaning the Government—
	"plan to charge every citizen nearly £100 each to hold a compulsory identity card".
	That was one of the manifesto debates between the two parties.
	The Liberal Democrats went to the people and said that that was the Government's intention—and the people voted.

A noble Lord: The Government lied.

Baroness Scotland of Asthal: No, my Lords, the Government did not lie. The Government's case was clear. Others, including the Liberal Democrats, understood what we were saying.

Lord Phillips of Sudbury: My Lords, I am grateful to the noble Baroness for giving way. Mr Blair's comment made no reference to "compulsory" or "voluntary". To pretend that the public, when listening to the Prime Minister, understood that a Bill had been introduced in which Clause 5 referred to a compulsory arrangement—it did not then refer to "compulsory" in words—seems far-fetched in the extreme. On the Liberal Democrat manifesto point, it is very simple: manifestos are written ahead of an election. The Liberal Democrat manifesto was written on the basis that the Tory manifesto—I am sorry, the Labour manifesto—would mirror and parallel what was in the Bill. It did not. Instead of talking, as it should have done if it had followed the previous Bill, about a compulsory card, it referred only to something "voluntary".

Noble Lords: Oh!

Lord Phillips of Sudbury: Noises can be made, but that is a simple fact. The word "voluntary" appeared in the Labour manifesto.

Baroness Scotland of Asthal: My Lords, I thank the noble Lord for his intervention because he has thereby demonstrated that this issue was put before the people of this country. The people of this country then voted. I know that it is a disappointment to the noble Lord, but they did not vote for a Liberal Democrat government.
	I turn to the other issue. We still do not know the position of the Conservative Party. When on the previous occasion I pressed this matter with the noble Lord, Lord Strathclyde, he responded basically by saying that, "We'll make our minds up later, when the case arises".
	It has been suggested that this issue should be terminated until the next general election. I say that because the date proposed on the previous occasion was 2011. In this debate it has been suggested by the noble Lord, Lord Turnbull, and other noble Lords that we should postpone the date as this may provide a way forward. The date that was last suggested by the noble Lord, Lord Phillips of Sudbury, was 2011. He made it clear in his intervention that that was so as to enable another election to intervene. So it is very important for us to understand the principal position of the Tory Party on this matter, but we have not heard it. We do not know whether we are looking at bringing in provisions with which Her Majesty's loyal Opposition would agree or disagree.

Baroness Anelay of St Johns: My Lords, the Minister is of course trying to tempt me into writing the next general election manifesto. I promise her that if by then I am in a position to do so, possibly from beyond the grave, I will let her know in advance what is in it.
	Today we are discussing an amendment. I have made clear my support for the amendment proposed by the noble Lord, Lord Armstrong. He has made a very helpful and honourable move forward to achieve a compromise. Today I have directed all my remarks towards that honourable way forward and of seeking a way to resolve this matter. In doing so, I am not going to get involved in market gardener bartering across the Chamber. That would be to demean the House, and I value this House too much to do that.

Baroness Scotland of Asthal: My Lords, of course I hear what the noble Baroness is saying, but we still do not know whether noble Lords opposite will or will not accept the identity cards scheme as something that will inure to the benefit of the people of this country. We believe that it does and that it is important.
	Where are we? We are where we have been for some months. The other place has been asked to think again, with variations on the same theme. On each occasion it has answered. For the sake of the record, I should tell your Lordships what those answers have been. On 18 October 2005, the Neil Gerrard amendment was defeated by a majority of 32. On 23 January 2006, Lords Amendments Nos. 16 and 22 were passed on Report by the Lords, by 186 votes to 142, an opposition majority of 44. On 13 February 2006, the two Lords amendments were then rejected, with a separate Division on each amendment, in the Commons with majorities of 31 and 51, respectively. On 6 March 2006, the Lords insisted on their amendments; the opposition majority was 61 on the Lords consideration of Commons amendments. On 13 March 2006, the Commons reversed the amendments and passed a technical amendment in lieu with a majority of 33. On 15 March 2006, the Lords again insisted, with a reduced majority of 35. On 16 March 2006, the Commons reversed the amendments with an increased majority of 51. On 20 March, the Lords disagreed with the Commons and passed two amendments in lieu, with a slightly increased majority, one vote, of 36. Then, on 21 March, the Commons disagreed with their Lordships by a majority of 43.
	I understand the reason why the noble Lord, Lord Armstrong, believes that this is helpful, but how many times are we going to say "No" to the will of the other place? I invite the noble Lord, Lord Armstrong, to think very carefully about whether he wants to press the Motion; about the impact it will have; and about the consequences for this House as regards its relationship with the other place. To be clear, I am not talking about the Parliament Act. I am talking about something I regard to be much more precious.

Lord McNally: My Lords, before the Minister sits down, on earlier occasions she has drawn on the Wakeham report to support her position. In paragraph 3.26, it said that the Lords' powers should be exercised "with restraint" and whenever the "occasion clearly demanded it". In paragraph 4.7, it stated:
	"Our conclusion is that the current balance is about right and should not be radically disturbed. It would be wrong to move in the direction of a basically unicameral system with the second chamber able to play only a 'revising' role".
	The judgment of when we reach that point, unless she is in favour of a unicameral Parliament, is a matter for each Member of the House, not for Ministers of the Crown.

Baroness Scotland of Asthal: My Lords, we have conceded on many points. It is a question of judgment. We have moved and moved and moved and moved again, but I do not think that there is any space left to move to. This is primary legislation. In many of the debates, Members of this House have been almost tempted to treat it as if it was secondary legislation. This is primary legislation, which has been debated and debated and debated again.
	We are left with a central issue—should the link that designation provides be maintained or not? The other place says "Yes". It has said "Yes" consistently—not just through this Bill, but through the previous Bill, which went through all its stages in the other place before the election.
	The Gerrard amendment dealt with this issue. On every occasion the other House has said that this link must be maintained as the most effective and efficacious way of delivering what is a main, government policy. If I may respectfully say so, it is for this House now, if it honours its position and that of the other place, to give way with grace.

Lord Armstrong of Ilminster: My Lords, I say to my noble neighbour, or rather my noble friend Lord Barnett—I think that I may allow myself to call him my noble friend—that I have not been used by the opposition parties in this matter. The Motion which I put down today was not put down at their behest or at their request; it was put down because it seemed to me that here was a different form of compromise from any of those previously considered, which was worth considering, and worth considering very seriously.
	I was encouraged by some of the remarks made by the noble Baroness, Lady Scotland, but not by all, and I was encouraged by what the Secretary of State said last week in another place. The House has to weigh the serious points that the noble Baroness made about the ultimate supremacy of the will of the other place, which I certainly do not call in question, with the question whether there is here a new possibility of compromise that could avoid a confrontation or possible use of the Parliament Act. I know the noble Baroness said that she was not talking about the Parliament Act and I very well understand that. I am sorry that my Motion comes at such a late stage in the process which we have been through, but I think that this compromise is different from others which have been suggested. I think that it could still form the base of an acceptable compromise, perhaps with the insertion of a time limit, and I beg the Government to consider that.
	It will be for your Lordships to decide whether the merits, such as they are, of these amendments should prevail against the very serious and moving remarks which the noble Baroness has made about the game of ping-pong that we have been playing and its continued extension. However, I should like to take the opinion of the House on that balance.

On Question, Whether the said Motion (No. A1) shall be agreed to?
	Their Lordships divided: Contents, 219; Not-Contents, 191.

Resolved in the affirmative, and Motion agreed to accordingly.
	On Question, Motion A, as amended, agreed to.
	Bill returned to the Commons with amendments.

Civil Aviation Bill

Read a third time.

Lord Bradshaw: moved Amendment No. 1:
	After Clause 4, insert the following new clause—
	"SOUND-PROOFING OF DOMESTIC AND COMMUNITY BUILDINGS AFFECTED BY AERODROME USE
	(1) The Secretary of State shall, no later than one year after this section comes into effect, make regulations under section 20(1) of the Land Compensation Act 1973 (c. 26) (sound-proofing of buildings affected by public works) imposing a duty on responsible authorities to insulate domestic and community buildings, such as schools and nurseries, hospitals, nursing homes, hospices, places of worship, libraries and other public use buildings against noise caused, or expected to be caused, by the use of aerodromes for the taking off and landing of aircraft.
	(2) Such insulation should provide for internal noise environments equivalent or better than the "good" category of BS 8233 where relevant.
	(3) In making provision as to the level of noise giving rise to such a duty in respect of a building or class of buildings, and the area in which a building must be situated if the duty is to arise in respect of it, the regulations must make reference to the noise attenuation of individual rooms in domestic and community buildings such as those outlined in subsection (1) above."

Lord Bradshaw: My Lords, in Amendment No. 1 we return to the issue of the adequate soundproofing of properties close to airports. I thank the Minister for the letter which I received this morning, but that letter does not in my view constitute a sufficient response to the amendment, which we moved for the first time earlier in the Bill's passage. We understand that the Government have powers under the Civil Aviation Act 1982, by negative resolution, to make a scheme requiring the operator of an aerodrome to provide the necessary sound insulation to properties around the aerodrome.
	The noble Lord, Lord Davies, said in his letter that the airport would need to be designated. As far as I understand it, the airports at Heathrow, Gatwick and Stansted, with which I am chiefly concerned, are designated airports, and so we can take it that the Government have sufficient power to make it possible that insulation is provided. Our information is that the communities around the airports and most particularly around Heathrow suffer excessively from noise. We are asking that the Government activate their powers to make provision for houses and, more particularly, schools, hospitals and other such buildings to be sufficiently insulated against noise.
	The Government have indicated that they will move towards doing that over a 30-year time horizon, but I suggest that for most of the people being affected 30 years is so long that either they will be dead or they will have long since passed out of places of learning. What we seek in the amendment is to hear from the Government what steps they propose to take immediately to give effect to the powers which the Minister's letter says they already have. The amendment is faulty to the extent that we suggest that they take powers; we understand that they already have them. We therefore want to know when they are going to do something about the powers that they already have.
	Evidence from the London Borough of Hounslow shows that the noise levels experienced by those who live in that area exceed the amount of noise that people ought to be subjected to. In the White Paper, The Future of Air Transport, there is no doubt that people who live around these airports will have to put up with more flights and more noise. Therefore, I think that this is the right time to say to the airline industry, "You must pay for some insulation". It appears to me that that has a greater call on airlines' resources than cutting yet another pound or two off the ridiculously priced cheap flights that they advertise daily in the newspapers. I believe that they have a duty to the residents around airports that is as great as or greater than their duty to the passengers whom they seek to attract to their flights. I beg to move.

Lord Berkeley: My Lords, I support the amendment, which is in the name of the noble Lord, Lord Bradshaw. I am also grateful to my noble friend for his letter dated yesterday, which, as the noble Lord, Lord Bradshaw, said, sets out his comments. I will not repeat the responses as the noble Lord, Lord Bradshaw, has given them already.
	The key to this issue is the difference between voluntary and statutory schemes. My noble friend said on Report that noise insulation schemes are provided only on a voluntary basis and that some buildings might require extra insulation. He said:
	"I am confident that airports will meet the Government's criteria".—[Official Report, 8/3/06; col. 800.]
	Airports are generally commercial undertakings; they will do what they can as long as it does not affect their bottom line. It is a bit like turkeys not voting for Christmas—they wouldn't, would they? I believe that the only answer is to have a statutory scheme that is reviewed regularly, that meets the British and World Health Organisation standards and that covers schools, nurseries, hospitals, places of worship, libraries and the like.
	My noble friend implied on Report that people did not have to live near airports and could always move. Given that the price of houses under the flight path is probably less than it is on Hampstead Heath, it is quite difficult to find a place to which you can move within the price range—if you can sell your house.
	As for the noise levels to which people are subjected, I wonder whether, if those people were at work for long periods, the Health and Safety at Work etc Act would come into force. Perhaps it is a bit like working in a dusty atmosphere. It is fine saying, "Okay, if you want a job, you work in a dusty atmosphere", but that is what the Health and Safety at Work etc Act is designed to prevent. The same applies to noise. Surely having a good night's sleep and a good environment for your kids to be educated in are just as important as having a sound, clean environment to work in.
	In the 21st century, we have very modern airline technology and very modern noise technology, but the poor people—and some of them are fairly poor—affected are often powerless to take any avoiding action. This should not be left to a voluntary scheme. I very much support the amendment and believe that a statutory scheme that is applicable to all UK airports is very important.

Lord Hanningfield: My Lords, I have every sympathy with the noble Lord, and support the amendment. I shall be moving an amendment later, which is in similar vein, about compensation for properties. We had the debate about noise on Report. The noble Lord, Lord Berkeley, repeated some of the arguments when we went to a Division. The issues of noise, night flights, insulation and valuation of houses are very important and very germane to the people who live near airports, especially if we are to have continued airport expansion and continual flights. I hope that the Government, on this issue and the issue of valuations—

Lord Clinton-Davis: My Lords, I often support what the noble Lord says, but, more importantly, he often supports me. Why did not the previous Conservative government introduce the scheme which he now applauds? They did absolutely nothing.

Lord Hanningfield: My Lords, I shall repeat the answer. A future Conservative government will be very different from past Conservative governments, in the same way as the current Labour Government are very different from previous Labour governments. We may as well use those arguments all the time.
	I hope the Minister can give some satisfaction to those who tabled the amendment. I think we all feel the same; it is just a question of how we achieve the objective of having a statutory scheme rather than a voluntary one. I support the amendment.

Lord Smith of Leigh: My Lords, I declare my interest as a director of Manchester Airport. I rise with respect to the comments made by my noble friend Lord Berkeley. I think that he implied that voluntary schemes will never work. I ask him to visit Manchester or Nottingham East Midlands airport where we have a scheme that is every bit as good as the one being proposed here and which is done entirely voluntarily. Voluntary schemes can work.
	My noble friend also mentioned a statutory code, but I cannot understand what the regulation would mean for an airport authority. How much airport noise will houses have to experience before we have to take measures? Will it be measured on the basis of distance, flight path or noise level? The amendment does not say. I think that the House should know what it is voting for before it does so.

Lord Clinton-Davis: My Lords, the amendment is imprecise, and it gives the impression that such matters are of no consequence. I said on Report that I could not recall an important meeting of BALPA—or outside the confines of the meeting—when this issue has not arisen. I speak as president of the pilots' union, whose members are deeply concerned about people who live under flight paths. To convey an impression that the situation is otherwise is completely false. Of course, it is impossible when discussions are conducted in a hostile way to make opinions heard, which I know from experience as an aviation Minister long ago. When it is possible for people to get together and discuss the problem of noise, progress is often made—and made voluntarily. I entirely agree with the views that have just been expressed. That situation prevails at Heathrow, Gatwick and Stansted, and it is idle to pretend otherwise.
	The Government must—as I know my noble friend does—give credence to the people who are affected by noise disturbance. But I do not think that this amendment points the way forward. I want real progress to be made soon. It will be achieved only by constant discussion between those who are affected—those living around the airport, those who live under the flight path and those who work at the airport. They must all be considered.

Lord Davies of Oldham: My Lords, my noble friends Lord Berkeley and Lord Bradshaw have pursued the issue with considerable tenacity throughout the passage of the Bill. I could not agree more with the point made by my noble friend Lord Clinton-Davis. The imprint of aircraft noise on people who live close to airports is a serious and important issue. That is why the Government address it with full seriousness and have measures in place.
	We are all agreed that action has to be taken to minimise noise and to reduce the impact of noise on households by measures referred to in the amendment but which I maintain are already substantially in place. My noble friend Lord Smith emphasised that the two airports of which he has considerable experience already have these measures in place. So have London Heathrow and London Gatwick; and Stansted will follow suit.
	The community buildings noise insulation scheme, in existence at Heathrow, meets all the standards that the Government have set. That is also true of Gatwick. Compliance is therefore already in place. "Compliance" is almost the wrong word because the airports have taken initiatives. They will need to take additional measures if noise increases. While we recognise that the growing frequency of flights occasions problems, the situation will also be mitigated by the improved quality of the aircraft and the reduction in noise from modern aircraft.
	I emphasise that airports have that consideration very much in mind. Why? It is because airports are in the business of ensuring that aircraft land there regularly, are competitive with other airports and work in an environment of broad support and approval. They will not achieve that if communities near airports stress to government that life is utterly intolerable because airports have no concept of their responsibility for the environment of those who live adjacent to airports. Airports act in their own interests when they produce such insulation schemes.
	It is not that I am not at one with my noble friends Lord Bradshaw and Lord Berkeley, who have so strongly pursued these issues, and with the noble Lord, Lord Hanningfield, on the Opposition Front Bench. I am greatly supported by the comments of my noble friends Lord Clinton-Davis and Lord Smith. We all recognise that aircraft noise needs to be tackled. Those who suffer because their homes are close to flight paths need forms of assistance.
	Previously, my noble friend Lord Berkeley raised the point that the 69 dBA Leq threshold in The Future of Air Transport White Paper, for operators of larger airports to offer households assistance with the costs of relocating, was very different from the World Health Organisation's recommended noise level of 30 dBA Leq in bedrooms at night. I am sorry to be technical, but these things have technical designations and it will be recognised that what is said at this late stage of the Bill can be interpreted as definitive on the Government's position.
	It may be helpful if I attempt to clarify this complex technical issue. The 69 dBA Leq measurement applies to a 16-hour day, from 7 am to 11 pm, and is measured out of doors. The latest World Health Organisation guideline of 30 dBA Leq relates to night noise indoors—specifically, in bedrooms—and applies to an eight-hour night, from 11 pm to 7 am. They are two entirely different measurements and ought not to be confused, because we will lead ourselves astray if we do not concentrate accurately on the issues.
	The latest World Health Organisation guideline value of 30 dBA Leq represents a level above which sleep disturbance may, depending on the nature and distribution of noise events, begin to be experienced or reported by some people who sleep with their windows open. Of course, as I have indicated, I fully appreciate that the issue of sleep disturbance will concern everyone who lives close to our busiest airports. Previous research has suggested that the incidence of sleep disturbance is especially associated with the loudest noise events and, in particular, those which produce more than a 90 dBA sound exposure level, which is a different sound measurement from Leq. It expresses the level of a noise event as if all its energy were concentrated evenly in one second. It therefore accounts for the duration of the sound as well as its intensity. A plot connecting points of equal sound exposure level from the departure, approach, or an envelope of the two, from a particular type of aircraft is known as the noise footprint.
	The night noise insulation criterion that the Government have proposed as part of the consultation on night flying restrictions at Heathrow, Gatwick and Stansted relates to the 90 dBA sound exposure level footprint of the noisiest aircraft currently operating at each airport. Some other airports already offer night noise insulation schemes using criteria based on a SEL footprint, as do the two airports mentioned by my noble friend Lord Smith.
	Furthermore, the published advice in the Government's planning policy guidance note 24, "Planning and Noise", which has applied since 1994, takes full account of the previous World Health Organisation guideline of 35—now down to 32—night-time Leq, although the research basis for that was somewhat tenuous, as the World Health Organisation recognised at the time. Planning policy guidance note 24 advises that an outdoors night-time aircraft noise level of 48 dB Leq, eight-hour night, should be taken into account for considering new dwellings near existing noise sources; and 57 dB Leq, eight-hour night, as the level at which noise insulation should be a condition of planning permission. The voluntary noise insulation schemes at Stansted, which have had government approval, have taken account of the 57 dB Leq night contour, as well as single event night noise footprints—although the latter have had greater effect on the overall scheme boundary.
	I assure the House that the Government are committed to taking account of the latest World Health Organisation guideline values, and will do so over the 30-year time horizon of the White Paper. It is worth emphasising, however, that the World Health Organisation guideline values on aircraft noise were recommended as long-term targets for improving health, and the values are very low. It would be difficult, if not impossible, to achieve them in the short to medium term without draconian measures; but that is not what the World Health Organisation proposed. We also support its conclusions for regular reviews and revisions to the guidelines as new scientific evidence emerges.
	We have not specified the achievement of BS8233 in setting out the circumstances in which we expect airport operators voluntarily to provide noise insulation. However, it should not be assumed that airport operators will therefore be unaware of those standards or that they will not seek to achieve them in providing noise insulation. As I emphasised in my opening remarks, there is no gain for airports by cutting corners. Providing insulation is, of course, expensive—it runs to thousands of pounds per home. But it will be in the airport operator's own interest to ensure that the insulation it provides is effective, so that the owners of the buildings that receive it are satisfied with it. BS8233 is referenced in the Government's planning policy guidance note 24 which set outs guidance for local authorities in England on the use of their planning powers to minimise the adverse impact of noise, including requiring noise insulation as a condition of planning permission.
	I apologise for the technical nature of this response, but we are talking about measurement and meeting standards, and I want to reassure the House that the Government are serious about meeting those standards. I re-emphasise that in The Future of Air Transport we made it clear that, if necessary, the Government would use their powers under Sections 79 to 80 of the 1982 Act to ensure that airport operators provide noise insulation to an appropriate standard on the basis of the White Paper criteria. I am confident that the powers we enjoy are sufficient to allow us to impose a duty on any airport operator that did not follow the minimum criteria for noise insulation that we set out in the White Paper. The Future of Air Transport also restated the Government's policy that if there is evidence that a major noise problem at a non-designated airport is not being dealt with adequately through local controls, the Government will consider further designations for the purposes of Section 78 of the 1982 Act and will therefore bring such airports within the framework of the requirements.
	I do not think that I could be any clearer, although noble Lords may think I have not tried. These are difficult technical issues, but I want to emphasise this point. Although it would certainly not be a decision that we would take lightly, the Government would indeed intervene if the circumstances warranted such action, and we had the powers to do so. As I have sought to emphasise to noble Lords, particularly noble Lords who have spoken positively to this amendment, the key airports are already compliant because it is in their interest to be so. Therefore, on the basis of the assurances that airports take this matter seriously and are providing the insulation and that the Government could act if necessary to enforce compliance with our requirements, I hope the noble Lord will feel able to withdraw his amendment.

Lord Bradshaw: My Lords, I listened carefully to what the Minister said. I quite understand the difference between 69 and 30, and I understand exactly what he is talking about. I am sure that the airports meet the minimum standards. However, the minimum standards are not good enough for the premises to which we have drawn attention: schools, hospices, hospitals, nurseries, places of worship and libraries. In fact, people who live around these airports say that they are disappointed at the level of funding for the BAA noise insulation schemes. They are particularly concerned that although it is possible to insulate against noise if all the windows are shut, it is necessary in hot weather to have ventilation systems as well or people suffocate in the interests of hearing less noise. That is not what we want people to do.
	By pressing the amendment I am not seeking to change the law, because I have accepted that the Minister has adequate powers. What I am saying is that those powers are not being used. With deference to the noble Lord, Lord Smith, I realise that things may be different in the case of Manchester and East Midlands where voluntary schemes may work. However, the people around Heathrow, Gatwick and to some extent—and in the future possibly more so—Stansted are very concerned about the levels of noise. I should therefore like to test the opinion of the House.

On Question, Whether the said amendment (No. 1) shall be agreed to?
	Their Lordships divided: Contents, 140; Not-Contents, 152.

Resolved in the negative, and amendment disagreed to accordingly.
	Clause 8 [Functions with respect to health]:

Baroness Hanham: moved Amendment No. 2:
	Page 9, line 41, at end insert "and of persons living in the vicinity of aerodromes in respect of any aerodrome-related operations which may have an effect on their health"

Baroness Hanham: My Lords, I return to an issue that we discussed on Report. The amendment requires that the Secretary of State be made responsible for safeguarding the health of people around an airport as well as the health of people on board an aircraft. By returning to the amendment at this late stage, perhaps the Minister will accept that we still have severe concerns about the difficulties experienced by people who live near airports as a result of noise and air pollution.
	We believe that it is now necessary to tackle this matter. We had a long discussion about the impact of noise in our debate on the previous amendment. As has already been made quite clear, noise has a considerable impact on the health of children as well as adults. It is very important that we recognise this. We all know that airports are necessary, but the consequences become greater as airports become larger and the number of flights through them increases.
	It is very important that we start now to see what those health impacts are and how they can be mitigated. I do not want to tempt the Minister back into describing all the technical aspects of noise, as he did in response to the previous amendment; we will spare the House, and probably the Minister, too, from describing aspects such as the 57dBA Leq level, which he dealt with so carefully and ably. They are really important, but we will leave them as read so that we do not have to go through them again. What we cannot leave as read is the fact that noise has a serious impact on people's health. Without doubt, people living or working under flight paths to busy airports suffer high levels of annoyance and stress. A significant proportion of those people are children, and the impact of noise on those children's lives has been shown to be severe. Their sleep patterns and their ability to concentrate are severely affected, but are ameliorated when children leave the vicinity of an airport.
	Having drawn attention to the fact that noise is a health problem, I shall concentrate on aircraft emissions, which affect local air quality. That impact is often augmented by road, rail and traffic emissions associated with airports. Research conducted at JFK Airport in New York reported that the airport was the largest single source of nitrogen oxides and the second largest source of volatile organic compounds in New York. The British Lung Foundation states that these pollutants alone can impair respiratory cell function, damage blood capillaries and attack the immune system. Together, however, the two chemicals can also combine to form ground-level ozone, which damages the respiratory system and causes breathing difficulties.
	In Committee, I was heartened to learn of the Government's commitment to the WHO's guidelines for noise. However, I ask the Minister for a much firmer commitment on the time scale for meeting those guidelines than he has already given. Clearly, those who currently live in the vicinity of airports are already severely affected by the consequences of aviation, and they will not be satisfied by a vague commitment without a clear timetable of actions to meet those guidelines. You only have to drive past Heathrow to get a wave of diesel fumes, even from quite a distance.
	Aviation is a unique industry that creates a specific set of health problems not only in aircraft but in the environment around airports. Those problems must be addressed. The Bill offers a timely opportunity to underscore the Government's commitment to the health of all those people whose lives are affected by aviation. The extension of the Secretary of State's powers, which the amendment would effect, would send a clear message to all those involved that the Government are taking the problem seriously. To pass up this opportunity would be to suggest to those living in close proximity to airports that their health and well-being are significantly less important than the health of the flying ticket-buying public. The Government have made a clear commitment to expanding aviation. I hope that they will embrace the responsibilities that come with this policy. I beg to move.

The Countess of Mar: My Lords, I support the amendment tabled by the noble Baroness, Lady Hanham. It is nice to hear her taking up my banner. Air pollution is a very important factor in human health, and increasingly we are finding that lower and lower levels of air pollution—sometimes we are talking about parts per million and trillion—are affecting particularly young children, whose immune systems are hardly formed. I was very interested to learn that cattle and sheep are born with their immune systems fully intact. It takes six days for the immune systems of mice to be intact; it takes six months for the immune systems of children even to begin to be intact. It takes quite a long time after that for the central nervous system to be intact. So we need to ensure the safety of our children and safeguard them from chemicals, the properties of which we simply do not know. This is a good case for the precautionary principle to be brought in, so I support the noble Baroness.

Lord Bradshaw: My Lords, I, too, support the sense of the two amendments tabled by the noble Baroness. We believe that compensation should be available for people who are affected by aerodrome-related operations or the expansion of airports.

Lord Berkeley: My Lords, I, too, support the principle of the amendment. It is great that Clause 8 is in the Bill, because it is terribly important that the Secretary of State has a duty to ensure the good health of people on board an aircraft. We heard a number of stories at previous stages of the Bill about problems in some aircraft, and it seems reasonable that the people who live around airports should have an equal measure of protection. Whether they have the same health problems or other health problems, those are still health problems. If the Government think it was worth including proposed new subsection (1A) in Clause 8(2), the amendment would fit very closely next to it and would make a proper balanced package between protecting the people in the aircraft and the people who live around the airports.

Lord Davies of Oldham: My Lords, I thank noble Lords who have participated in this debate, although the balanced little package of my noble friend Lord Berkeley looks very unbalanced from the perspective of this Dispatch Box. I will seek to establish before the House why that is. The amendment would extend the health-related duties of the Secretary of State to include persons living in the vicinity of aerodromes in respect of any "aerodrome-related operations" which may affect their health. It would draw the Secretary of State's functions very widely indeed. We do not believe that they need to be extended in this way.
	Perhaps I may remind the House why we have taken the general duty, which has been welcomed by all participants in the debate, of,
	"organising, carrying out and encouraging measures for safeguarding the health of persons on board aircraft".
	That was in direct response to the Select Committee on Science and Technology of this House, which recommended in its Fifth Report in 1999-2000 that the Government ensure,
	"that concerns for passenger and crew health become a firm priority".
	It has become a priority and it is in this Bill.
	The United Kingdom is in the vanguard of taking responsibility for these issues and our proposed new general duty has been widely welcomed on all sides. But the amendment goes far wider than your Lordships' committee ever envisaged or the Government believe is necessary. It looks as if it could encompass any health issues relating to "any aerodrome-related operations". It could thus give the Secretary of State a duty in relation to all the service industries in airports, as well as to the airlines. Presumably, it could cover traffic congestion around airports—from passengers arriving or departing, from logistics companies servicing the shopping malls, or from cargo handling operations. It could possibly extend to other health issues concerning catering, baggage handling or security to the extent that these impact on,
	"persons living in the vicinity of aerodromes".
	That is a very wide extension.
	To the extent that those living in the vicinity of aerodromes are engaged in any form of business, those businesses are covered by the Health and Safety at Work etc. Act, which extends the duty on employers to include the health risks to the wider public arising from their work activities. We do not think that duty on businesses should be placed on the Secretary of State for Transport.
	Airports are no different as places of employment from many other industrial centres where there are issues of noise, traffic or related issues. People living in the vicinity of airports, like those living in the vicinity of other industries, are covered by laws relating to traffic, planning and noise. There are already policies and statutory powers in place that seek to mitigate the impact of aviation noise and emissions on local residents. We have stated our commitment to the World Health Organisation guideline values. I am delighted that the noble Baroness has absolved me from repeating in technical detail all those values. We will continue to produce further research on the impact of aviation noise and emissions on health as it emerges from other sources.
	We do not consider that there is a need for this extra layer of duty to be placed on the Secretary of State in relation to aerodromes. Such a greatly widened amendment would also have considerable practical and resource implications, which the Government could not accept. I understand the motivation behind the amendment because it is on the side of good in being concerned about the health of our fellow citizens. But to put this duty on the Secretary of State for Transport would be inappropriate and not helpful. I hope that the noble Baroness will accept this argument.

Baroness Hanham: My Lords, I thank the Minister for that reply and I also thank noble Lords who have contributed. I hope very much that the noble Countess, Lady Mar, does not think that I have stolen her thunder. I did not mean to do that.

The Countess of Mar: My Lords, I am delighted.

Baroness Hanham: My Lords, the noble Countess has always espoused these areas and is very much more expert than I am on this. I thank the Minister for his reply. We have had a good debate around this subject on two occasions. I do not intend to divide on this matter. However, it is important that the effect on people who live in such close proximity to fumes and extensive amounts of noise is not lost in our enthusiasm for ensuring that air travel is more frequent, planes are larger and everything else that will happen in the future.
	We must continue to recognise that there are adverse impacts to travel, which have a direct effect on people who live very close to airports. I hear what the Minister says about health and safety. We would probably suggest that that is not working brilliantly, but I would not want to be held too closely to that. We need to ensure that legislation is carefully implemented to protect people who live near airports. I thank noble Lords who have joined in this discussion. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Bradshaw: moved Amendment No. 3:
	After Clause 10, insert the following new clause—
	"AIR TRAVEL TRUST: CONTRIBUTIONS BY INDIVIDUAL PASSENGERS
	(1) There shall be a levy to be known as the Air Passenger Levy ("the levy"), which shall be charged on the carriage on an aircraft of a chargeable passenger.
	(2) A "chargeable passenger" is one whose flight begins at an aerodrome in the United Kingdom and who travels outside the United Kingdom.
	(3) Regulations under this section may—
	(a) specify the amount of the levy,
	(b) set a ceiling on the amount to be collected from the levy, and
	(c) require operators of the aircraft to pay the levy to the Air Travel Trust.
	(4) Regulations under subsection (3)(b) which set a ceiling for the amount to be raised by the levy must—
	(a) ensure that contributions to the Air Travel Trust Fund cease once this ceiling is reached, and
	(b) allow for the levy to be reintroduced if the level of funds accrued from the levy falls below 50% of the amount specified by the ceiling."

Lord Bradshaw: My Lords, on a day when this House has been detained for an hour or so talking about the supremacy of another House, it is very fitting that we come to an issue which has been reported on very thoroughly and recently by a Select Committee of another House.
	The ATOL—Air Traffic Organisers' Licensing—licence enables passengers stranded abroad, when their air carrier fails, to return home and for refunds to be made to ticket holders who have yet to travel. It protects UK package holiday-makers, but it covers a declining proportion of the UK travel market. It does not apply to the growing number of UK leisure travellers who book directly with scheduled airlines and pay by debit cards and various other things, which I am sure will be touched on in the debate. In 1996, 96 per cent of people were protected: in 2004, 66 per cent were protected. Estimates for 2010 are that only 20 per cent of people will be covered, if that.
	The Government's decision to reject the advice of the regulator appointed by them—the CAA—which said that they should add a modest levy of £1 to the cost of international travellers' tickets, means that millions of holiday-makers will remain vulnerable. That is an actual and not a theoretical risk, which was brought into sharp focus by the collapse of EUjet only a few months ago when thousands of passengers were stranded. Although many were repatriated, they were repatriated to places a long way from Manston airport in Kent, where, I think, they took off. Of course, if passengers have travelled to the airport by car, it is not much compensation to land at Manchester or somewhere else and have to go back to Manston for their cars—and also pay for the privilege of travelling from Manchester to Manston.
	Many people think that they are protected when they fly abroad. That number is very high because people think that they have ATOL cover when they have not. In fact, most travel insurance policies do not cover air carrier insolvency. The Government believe that relying on the insurance market, coupled with voluntary arrangements, amounts to a policy of adequate protection from the consequence of an airline collapse. We do not. I think that view is shared by noble Lords on all sides of the House and it was very strongly endorsed by the Select Committee in its report.
	A £1 levy would soon build up to a sizeable sum of money. We have made provision in the amendment, since it was first moved, to arrange for the levy not to be collected once a reasonable sum of money has accumulated. It would not be activated again until the money was spent, so it would not be a constant drain. In many respects, it is a deregulatory measure, because a lot of people are not being regulated. We have to face the fact that the ATOL scheme is almost on the point of collapse.
	The Select Committee concludes its report summary by stating:
	"In reaching its decision, the Government has not only rejected comprehensive advice from the CAA and the views of large parts of the industry",
	such as Virgin Atlantic, which can hardly be described as a company keenly in favour of regulation. The report continues:
	"The Government appears to have departed from the important principle that policy should be based clearly on evidence. Instead, we have a policy founded on assertion".
	The Government should look more thoroughly at the evidence in the report, the last few words of which state:
	"Most importantly, the Government needs to rethink its decision, in effect to abandon effective protection for millions of air travellers",
	which they believe they have. The committee, on which the Government have a majority, concludes by stating:
	"We urge it to take the opportunity of this report to do so".
	In this amendment we are giving the Government the opportunity to refer to this fairly recent report and to amend the Bill to make it a better Bill which gives protection to the increasing numbers of people who journey abroad. I beg to move.

Lord Borrie: My Lords, my name is associated with this amendment, and I am pleased to be able to follow the remarks of the noble Lord, Lord Bradshaw, who has made a clear case based most essentially on one fact—namely, that the behaviour of customers has changed over the past 10 years. Their behaviour 10 years ago was largely to use package holidays when going on a holiday abroad. The ATOL licence ensured that if the holiday did not take place and the customer lost money, compensation was available. More importantly, if one was stranded abroad on a package holiday, the scheme, through the licence, would enable one to get back home. The change described by the noble Lord, Lord Bradshaw, means that now there is no such protection.
	There are trade associations who are not interested in consumer protection. However, one for which I have plenty of praise is the Association of British Travel Agents. For decades it has had arbitration schemes which use independent arbitrators when there are difficulties between tour companies, airlines and the passenger. It is fully in support of this change. The Government are always entitled to reject advice, but on this occasion they have had advice not only from what the noble Lord, Lord Bradshaw, described as their own regulator, the Civil Aviation Authority; they have had advice from Ernst & Young, which has done the figures, from the Consumers' Association, from Virgin Atlantic and from the Association of British Travel Agents. What more can you do?
	The noble Lord has described what more there has been—there has been this latest Select Committee report from the House of Commons. I wonder what the Minister has got to put against it. I would hate to describe the Minister as arrogant. I know he is not. I have had experience of discussions with him on a number of recent Bills in which he has been involved, and he is the very furthest remove from any touch of arrogance. But I cannot actually find a suitable word for what he seems to have been guilty of up to this point in the discussion on the Bill, but it is not one which I think is easy for him to defend.
	I want to mention one small aspect of his argument in Committee. He rightly said that there were many areas where insurance was perhaps desirable, but we— the Government, Parliament—do not make it compulsory. That is true even in road traffic matters, where we have had some kind of insurance since 1930, I believe. We make it compulsory only in relation to liability to third parties. But this is a very different situation. In this case there has in practice been protection for years and years, the result of which has been partly explained by the noble Lord, Lord Bradshaw. Many of those who now make their own travel arrangements, as is the custom nowadays, think they are covered by ordinary travel insurance, when they are not. If they happen to use a credit card, then Section 75 of the Consumer Credit Act gives them protection. I am glad to say that our Law Lord friends in the House of Lords, in their judicial decision earlier this month, said that that applied when the consumer bought things from foreign suppliers. So, the alternative supplier—namely the supplier of the credit card—is liable for any purchase, whether airline tickets or shopping purchases between £100 and £5,000, I think. But of course many people do not think about the subtlety of using a credit card instead of a charge card such as American Express or a debit card. There are other methods of payment, too, but they do not have that peculiar advantage of using a credit card which I have just described.
	In practice we have had protection, but as the noble Lord, Lord Bradshaw, explained, it is a diminishing protection as ever fewer people go on package holidays as distinct from making their own arrangements. I think that that is a sufficient argument for this amendment, which is so modest in its implications and yet so significant if you think of people stranded abroad on their holiday.

Baroness Hanham: My Lords, I want to make it clear that we are fully in support of the amendment. We understand the concerns being expressed about the lack of financial protection for air travellers, particularly those who are not booking, as has already been said, all-in travel arrangements from travel agencies but, as is now much more common, making their own arrangements on the internet for flights and hotels.
	Mercifully, low-cost airlines do not go bust regularly, but when they do it is a catastrophe for travellers who often find it very difficult and expensive to make alternative arrangements. It is also very inconvenient, as the noble Lord, Lord Bradshaw, pointed out, as changes often have to be made at extremely short notice, sometimes when people are trying to get back from their holidays.
	It is clear that travel insurance is not a sufficient answer as the arrangements needed to rescue stranded people require either empty seats to be found on other flights or charter arrangements to be put in hand by an organisation geared to do so, such as the Civil Aviation Authority. Reimbursement of ticket costs may be available if people have used a credit card but, as the noble Lord, Lord Borrie, pointed out, that is not true if they use a debit card.
	If this amendment is agreed to, its prime purpose is not, or should not be, to alleviate the travel companies' responsibility under the bonding system but to ensure that all travellers are covered in a way that will bring the quickest and most efficient response to the emergency failure of an airline. It is estimated that 20 million passengers a year are not protected by the ATOL scheme. As we have heard, the £1 levy will be temporary until a fund has built up that is adequate to support what is proposed. The purpose of that is to provide the necessary assurance to all air passengers that they are covered for repatriation in the event of an airline failure.
	The proposals require far more consideration by the Government than was given in the letter of the noble Lord, Lord Davies, to the noble Lord, Lord Faulkner, following the Committee stage. The noble Lord, Lord Borrie, struggled for a word to describe the Minister's attitude. I would never describe the noble Lord, Lord Davies, as arrogant, but on this issue and on that letter I would describe him as being somewhat complacent about the situation.
	The advantages of a levy have been well rehearsed by the previous two speakers. It is obvious that it would be extremely easy to collect and is probably not something that people would notice very much. The variation in the cost of air tickets is now so enormous that you do not know whether you are paying for the seat, for the sandwich or for the fuel. You are pretty clear that the person sitting next to you has paid four times more than you have, and you hope that it is not the other way around. The sum of £1 seems a very small amount to pay in order to provide the reassurance that is now required in view of the way the travel industry has developed. This is an important proposal. It may look like only a small sum of money, but sometimes the smallest sums reap the richest and greatest rewards.

Lord Faulkner of Worcester: My Lords, I too am delighted to add my voice in support of this amendment, which is an improvement on the one I moved in Committee. Indeed, our debate at this stage is a little like an action replay of the Committee stage where everyone who spoke, with the exception of my noble friend on the Front Bench, was strongly in support of the principle of the levy. The amendment of the noble Lord, Lord Bradshaw, is an improvement on mine because it is more flexible. It makes it clear that if the fund builds up and is not drawn on, there is no need to go on collecting the levy indefinitely, so allowing the fund to reach absurd proportions.
	This is the right thing to do because it would restore to some extent a measure of fair competition between the reputable travel trade, which is required to operate its own bonding and licensing regime, and the airline operators which offer their customers no such comparable protection. Like the noble Lord, Lord Bradshaw, my noble friend and the noble Baroness, Lady Hanham, I have struggled to understand the logic behind the Government's decision to oppose the CAA's proposal.
	I checked to see how this issue was covered when the Civil Aviation Bill was debated in the other place. But this matter was not properly debated. Indeed, as the noble Lord, Lord Bradshaw, said, the most thoughtful contribution on the subject of a levy from the Commons came from the Select Committee, which produced a very powerful and unanimous report.
	You cannot argue that this would place a regulatory burden on the travel business. The travel industry itself would save between £80 million and £100 million a year through switching from the existing bond to a levy. It would also add a financial dynamic to the marketplace as the cost of ATOL bonding places a huge burden on new travel companies that are trying to set up. Also, as the noble Baroness, Lady Hanham, pointed out, it would add almost nothing to the cost of air travel. Already the airlines are piling on to their passengers surcharge after surcharge.
	At the weekend I did a little test purchasing on the internet. I investigated the cost of flights to and from Malaga with easyJet from Luton. The air fares for flights out and back next week came to £192.48 per person. On top of that "taxes and charges" were added, amounting to £9.50. The company then said, very kindly I thought:
	"Great value travel insurance from Mondial has been added automatically to your basket for your convenience and peace of mind. We strongly advise you not to travel without travel insurance".
	I think that this is called inertia selling. You have to remove the offer from your booking. How much was it? Was it £1? No, it was £10, which is £1 more than it was when I last looked at the site on 8 March. Then, when you come to pay, the great credit card scam slips in. I looked in vain for the suggested message which my noble friend Lord Davies said in his letter to me of 10 January, for which I thank him, the Government were encouraging UK airlines to incorporate in their booking process, making the point that payment by credit card would provide some financial protection. Not a word did I see on the easyJet booking page. Instead, it stated:
	"Credit cards incur a percentage charge of 1.95% of the total amount payable, with a minimum charge of £4.95".
	Even a debit card transaction carries a surcharge of £1 on the easyJet site.

Lord Berkeley: My Lords, does my noble friend agree that the cost of booking by phone, where you have to hang on for two hours, is probably about equal to those charges?

Lord Faulkner of Worcester: Or even more, my Lords. Indeed, other airline booking sites such as Ryanair have introduced the novelty of a charge of £5 for a bag weighing 20 kilograms on its flights, and again not a word about financial protection if you use a credit card to pay.
	There is a huge problem of perception here, as other speakers have said. People book their cheap airline tickets in the belief that they are protected by some sort of fund which will bring them home if the airline collapses, as EUjet did last year. Back in 1997, the ATOL scheme protected almost every traveller—some 98 per cent. By the end of last year the proportion had fallen to a little over half. Only last week the travel trade press reported that some tour operators, those with their own airlines, are looking at ways of pulling out of the ATOL scheme following the judicial review decision in January. That is more bad news for consumer protection.
	By continuing to resist the CAA proposal for the £1 levy, I am afraid that the Government are storing up huge problems for themselves. We have not had the last airline collapse, and I really do not want my noble friend to have to come before the House and explain why tens of thousands of British holiday-makers are stranded abroad because no fund was in place to bring them home when their airline went bust. It cannot make sense for the airlines to continue to exploit their passengers who fall for their insurance schemes and credit card rip-offs while at the same time deny reasonable protection to everyone who flies from a British airport with a simple £1 levy. I am very pleased indeed to support the amendment.

Lord Howe of Aberavon: My Lords, I wonder quite why I find myself taking part in this debate because it is not a topic into which I normally venture. It may be because I smell the scent of aviation fuel after having had the privilege of representing for 22 years the eastern frontier of Gatwick airport. The other reason is that I declare an interest as honorary president of the Consumers' Association—Which?, as it now is. I cannot add any substance to the arguments already advanced, except to sum them up in a way that seems to me should be overwhelming to the Minister as he sits in his place.
	Never have I previously encountered a proposition of this kind, one which has the support of almost every organisation in sight: almost every organisation in the travel industry, the Parliamentary Select Committee in the other place, along with every consumer representative association. However, the Minister stands alone, unable to summon any witness or supporter to his aid. The argument has been advanced that the proposal is in some way unacceptable because it would be a compulsory scheme, but that was a characteristic of the ATOL scheme before it. A further argument has been advanced that it is in some way a stealth tax. First, it is not a stealth tax; secondly, the sum involved is so minute as to be invisible; and thirdly, it is a charge which it has been proclaimed in advance will be reduced as soon as the fund reaches a point of sufficiency. Having read the Minister's speeches at previous stages of the debate, I find it impossible to work out quite why so Horatio-like he stands upon such a fragile bridge.
	I will try to express the nature of the proposal in a different way. Far from being a tax, it is an immensely attractive one-way bet. A pound a throw and the reward, if you ever have to claim it, could be a substantial sum. In every conceivable way it is beneficial, save only for the Minister, who is proclaiming himself—sadly, alas, and uncharacteristically—to be a ministerial masochist. I wish him well, but do not believe that he will convince the House in any way.

Lord Clinton-Davis: My Lords, I am delighted to follow the noble and learned Lord, Lord Howe of Aberavon, whether or not he was brought to the debate by the smell of aviation fuel. He may have other reasons—there are better ones.
	My noble friend, for whom I have a tremendous regard, was for many years a colleague of mine in the Commons. I am delighted that he is here, but I am profoundly unimpressed by the arguments that he has adduced. When we debated the subject in Grand Committee on 8 December, he said that this decision was arrived at in full recognition that there were as many arguments on one side as on the other. I have heard arguments only on one side—except from him. Apart from the airlines, I do not think that anybody supports the idea that he now propounds.
	I say that with some reluctance, because I am totally baffled by the stance that the Government have taken on this issue. The position has been recommended by the Civil Aviation Authority, among many others, as was said by my noble friend Lord Borrie. What arguments are to be adduced here?
	As far as I know, the organisations representing passengers are totally in favour of doing away with the present position. As far as I know, most consumer organisations are also in favour of this. I am totally bewildered by the stance that my noble friend has taken in this regard, but I am prepared to absolve him. He is not the Aviation Minister. He is determined by policy made by other people. I have a very high regard for him. I hope he will not let us down, but I fear that he will. On this occasion, I cannot think of a single issue that defies the logic of this amendment, which I wholly support.

Lord Davies of Oldham: My Lords, we move from arrogant to complacent. As I recall—the noble and learned Lord, Lord Howe, will perhaps confirm it—Horatio had an attribute of courage. Lonely I may stand, but I also recall that Horatio had considerable success in his lone stance with two colleagues. On this argument, I have more than two colleagues on my side.
	I intend to address the issue in principle, because I am certainly upset by the statement of my noble friend Lord Clinton-Davis—I was grateful for his kind words, until he delivered the killer blow—that he could find no one who agreed with me. I emphasise that there are arguments on the other side, which I will deploy as best as I can in a moment. Those arguments convinced the Government to take their stance, fully aware of the representations received from other quarters and mindful that, as the noble Lord indicated and other noble Lords have emphasised, the Select Committee in another place took a different view from the Government.
	Let me deal with a less than courageous response, the low blow that I could deliver at the end of this debate. That would be a little demeaning, but ought to be effective, if noble Lords recognise that at this very late stage of the Bill we can deal only with amendments that deliver what they say that they want to deliver. The problem with this amendment is that it does not.
	The amendment will not give extra protection to airline passengers. While it widens the contributors to the Air Travel Trust by charging all airline passengers on all UK flights, it does not likewise widen the beneficiaries of the fund. The Air Travel Trust can pay out only to customers of package operators. It cannot pay out to flight-only customers unless the deed governing the trust is varied to extend the beneficiaries under it. Varying the deed is a matter for my right honourable friend the Secretary of State. The new clause does not give him the specific power to do this. Airline passengers, therefore, could be left paying for a benefit that they could not access. The proposed levy would simply add a financial burden to more than 20 million airline passengers per year, yet those passengers might not benefit from the Air Travel Trust if their airline became insolvent, because of the deficiency in the amendment. That is why I hope that it will not be pressed to a vote—it will not put in the Bill that which noble Lords intend.
	It would be a weak response if I relied solely on that matter. I have been challenged to identify whether there are any arguments that substantiate the Government's position. We accept that there is considerable weight of opinion on the other side. It was voiced in this House both today and in previous debates on the Bill. As I mentioned, the Select Committee in the other place took a different view. Originally this was a proposal from the Civil Aviation Authority, a body that we also take seriously on these matters.
	We oppose the levy in principle. We considered the Civil Aviation Authority's proposal carefully, but we were not convinced that it would be fair, fully effective or proportionate. Our arguments are these—first, it is not fair because the bulk of the £250 million fund, which the CAA intended to build up, would have been spent on refunds, not on repatriation. It would have benefited in particular those who take expensive trips with financially insecure companies. Moreover, as a matter of principle, the state does not generally organise refunds for products where the supplier goes bankrupt before delivery. That is a Pandora's box for the House to recognise if ever there was one.
	Secondly, it is not fully effective, because independent travellers would be covered only for their flights—not for their hotel, campsite or car-hire company—solely for the flight.
	Thirdly, it would not be proportionate, because UK airlines have committed themselves already to helping stranded passengers return home at moderate cost. The European Low Fares Airline Association has certainly reviewed the experience last summer with EUjet and agreed to improve arrangements; for example, better communication, keeping offers open for at least two weeks and making seats bookable. These days, when there are so many options for travel, people are far less likely to be stranded overseas, with no alternatives to getting home, than would have been the case in previous decades.
	As regards refunds, travellers have other ways of protecting themselves. They can buy insurance, which covers scheduled airline failure. They can pay by credit card, to which my noble friend Lord Faulkner referred. I recognise, of course, that that carries a surcharge but it gives protection under the Consumer Credit Act for transactions over £100. We do not believe that those who have protected themselves should have to do so twice over, as they would under a levy. Instead we shall continue to encourage airlines to include information to passengers booking online that flight-only bookings are not ATOL-protected. Both British Airways and Flybe have posted such a message and amended the travel insurance they sell to include cover for scheduled airline failure. British Airway's insurance extends to all the oneworld alliance partners. Flybe issued a press release on 1 March to draw attention to its new insurance product, offered in conjunction with AIG Insurance. Ryanair has a scheduled airline failure insurance policy available for customers to purchase from 27 March, yesterday, in conjunction with primary insurance. Some other airlines are working on this, and those already committed account for 30 to 40 per cent of the CAA's target group. In addition, the Government understand that more general travel insurance providers are working on including scheduled airline failure.
	So events have moved on from the CAA's study, which led it to make its recommendation. The CAA's study reported that only about 10 per cent of travel insurance offered scheduled airline failure cover. The situation is being transformed. Increasingly, media travel pages are drawing the need for personal financial protection to passengers' attention. In addition, there is information for passengers on the CAA, FCO and Air Transport Users Council websites. The Foreign and Commonwealth Office website has been updated to alert passengers that paying by credit card can bring financial protection—a point to bear in mind when deciding whether to pay by credit card.
	We have asked the CAA to review the existing ATOL bonding arrangements to make them less burdensome for tour operators. It has already consulted the industry informally and will go out to further consultation on its proposals very shortly. That may result in tour operators paying a single payment per customer instead of financing both a bond and a contribution to the Air Travel Trust Fund. Rather than extending compulsory cover beyond those caught by the package travel directive, we are looking to make the existing ATOL system less onerous. The directive is, however, under review by the European Commission.
	There are many areas where insurance is wise but the Government do not make it compulsory. The Government do not make it compulsory for medical insurance to be taken out for travel abroad, though people get ill or become injured on holiday. The Government do not make compulsory personal possessions insurance for travel abroad, though people lose valuables or have them stolen. The Government do not make compulsory car breakdown insurance, though people are often inconvenienced by breakdowns far from home.
	One could say that any of these eventualities is just as likely and just as distressing as being caught up in an airline insolvency. My right honourable friend the Foreign Secretary launched only last week on 21 March a new guide to consular services, Support for British Nationals Abroad. Over the past year consular staff dealt with many traumatic cases, including 4,000 British nationals hospitalised overseas, 4,000 deaths and almost 6,000 British detainees. In his Statement in another place my right honourable friend said:
	"The fundamental responsibility in respect of the risks of travelling abroad must be met by travellers themselves through an appreciation of the risks and with comprehensive travel insurance".—[Official Report, Commons, 21/3/06; col. 156.]
	The Chancellor announced in the Budget that the Government would support with an initial endowment of £1 million the creation of a new terrorism relief fund to provide rapid relief to victims of terrorism at home and abroad. However, that is a unique and particular risk, an extreme case which we consider merits government intervention.
	Travel has changed substantially from when ATOL bonding was introduced in the 1970s. In those days air travel was for the few. Now it is for the many. The network of destinations and carriers has given people a choice unimaginable 30 years ago. The Government believe that encouraging personal insurance is much more in keeping with these trends. It is not for the state to step in and compulsorily enforce consumers' responsibility to themselves for the protection they need on their holidays.
	To summarise: in view of the CAA review of ATOL bonding and the improved availability of consumer information and scheduled airline failure insurance, the Government do not intend to alter their decision against a mandatory financial protection levy on international flights.
	Of course, I recognise the point that my noble friend Lord Faulkner made on the cost of EUjet travel insurance. However, travel insurance covers much more than just the flight home. I am talking about full travel insurance. That is the message we must get across to the increasing multitude of travellers. One is at far greater risk from incidents other than airline failure. We therefore have strong arguments on our side. I hope noble Lords will recognise that at least I have met my noble friend's charge that there are no arguments on the other side. We said all along that we recognised that the CAA had some good arguments to put before us, and we considered them very carefully.
	I hope that today I have deployed a convincing case against the argument, but I also hope that noble Lords will forgive me if I reiterate the point which I made right at the beginning—this amendment does not deliver what it sets out to achieve. It ought not, therefore, to be in the Bill.

Lord Bradshaw: My Lords, I have heard what the Minister said. To some extent that shows up the defects of the procedure in this House under which certain Bills are dealt with in Grand Committee where amendments are not divided upon and therefore certain measures do not appear until Report. It is possible for the Minister almost to lay a trap for us at this stage into which we can fall because we have not been forewarned in time. Of course, had we been forewarned we could have corrected the defect. I listened very carefully to what the Minister said. I believe that most people who buy travel insurance are blissfully unaware that it does not—

Lord Faulkner of Worcester: My Lords, I refer to a practical point. It is presumably the case that if the House carries the amendment tonight, it will have to be considered in the other place and the Government will have the opportunity to bring back to us an improved amendment, which I am sure, judging by the mood of this House, the whole House would be willing to accept.

Lord Bradshaw: My Lords, that is what I was about to say. We are saying to the House of Commons, "The Select Committee has put the evidence before you and has made an extremely strong recommendation that you should abide by that evidence". By seeking to amend the Bill, we will present the House of Commons with the opportunity to do what it said that it would. However, I reiterate the point—I think that it was underlined by the noble Lord, Lord Faulkner—that very many people who buy travel insurance through the internet are not aware of the extent of its cover. I am not sure what the Mondial insurance to which he referred includes. I am not sure whether it would cover the failure of EUjet. It may cover one's health while on holiday, but I have no idea. Without having all the small print available, you are not really aware what you are buying.
	In the circumstances it is important, bearing in mind the support that we have had from all around the House, that this matter is divided upon. That will simply give the House of Commons the opportunity to revisit an issue that it did not adequately consider. I wish to test the opinion of the House.

On Question, Whether the said amendment (No. 3) shall be agreed to?
	Their Lordships divided: Contents, 119; Not-Contents, 123.

Resolved in the negative, and amendment disagreed to accordingly.

Lord Hanningfield: moved Amendment No. 4:
	After Clause 11, insert the following new clause—
	"COMPENSATION: AIRPORT EXPANSION
	(1) The Secretary of State may direct specified aerodrome authorities to introduce compensation arrangements for property owners whose properties have been adversely affected by proposals for airport expansion.
	(2) The terms of the compensation arrangements will—
	(a) ensure that the property owner is financially no worse off than if the property had not been adversely affected by the airport expansion proposals; and
	(b) include advance guarantees to purchase any properties affected.
	(3) Such arrangements are to be introduced as soon as practicable following the Secretary of State's direction."

Lord Hanningfield: My Lords, the implications of the burgeoning aviation industry are felt far and wide, but nowhere more so than by those communities living in the shadow of our major airports. We have already discussed several times today the problems that those communities suffer on a daily basis, but they pale in comparison to the plight of those communities threatened by airport expansion. It is important to recognise that due to the distinctive character of aviation, the blight suffered far exceeds the territorial extent of the physical development. The difference is significant. When one builds a railway line, one does not expect the train to leave the tracks and create noise and nuisance over a mile away. The inherent nature and attendant problems of aviation make it unique, which has consequences for the way in which we must compensate for the blight that it can cause.
	The amendment is designed to address the problem of generalised blight, which materialises as soon as any major airport expansion plans are made public. The problem was recognised in the 2003 air transport White Paper, when the Government signalled:
	"The airport operator will need to put in place a scheme to address the problem of generalised blight resulting from the runway proposal".
	I declare at this juncture my interest as leader of Essex County Council, since much of my understanding is drawn from my experience of Stansted Airport's expansion plans. BAA's home owner support scheme has proved woefully inadequate; so inadequate that Takeley parish council—which is the major village involved—decided to pursue legal action. The case was before the High Court at the time of the Grand Committee. Although provision for judicial review was not granted, the case remains significant in two respects. First, it is clear evidence of the strong feeling in local communities that this approach to compensation is inadequate, arbitrary and unfair.
	Secondly, the case gives the argument that I advanced in Committee a significant new dimension. The legal team acting on behalf of Takeley parish council argued that,
	"the White Paper envisages a scheme to provide redress to those affected by 'generalised blight' and paragraph 12.16 envisages the relevant class of beneficiaries to be 'local people', without limiting such redress to those within a particular noise contour . . . By limiting the compensation scheme to providing redress for those 'worst affected' rather than minimising the impact on local people as envisaged by the White Paper, it failed to address instances of generalised blight which fall outside the boundary, and it is based on an irrational distinction between properties falling inside the boundary and those falling outside it".
	There is a line somewhere, and there is a house on one side and a house on the other side. It causes particular hardship.
	Consequently, at the hearing it was argued that the Secretary of State had acted unlawfully by granting policy support for the construction of a new runway at Stansted while failing to ensure that appropriate measures were in place to compensate those impacted by generalised blight. Since those were measures that the Government committed themselves to in the White Paper, the legal team argued that the Secretary of State thereby infringed the European Convention on Human Rights. I will not go into the more legal processes, but obviously people felt very strongly about it.
	I am no lawyer, but it seems that the present practice of encouraging airport operators to introduce a voluntary compensation scheme has failed the Government's stated purpose in the White Paper. The nature of the existing arrangement has the potential at least for the Government to be found in breach of their obligations under the convention.
	In light of that potential and the obvious unfairness of current voluntary compensation schemes, it would seem eminently sensible to accept the amendment and give statutory force to an equitable compensation proposal that chimes with the Government's sentiments and policies as set out in the White Paper. I beg to move.

Lord Smith of Leigh: My Lords, I shall raise two issues on the amendment. First, I was not clear from the outline of the amendment given by the noble Lord, Lord Hanningfield, how it cuts across the right that property owners have under existing legislation. Compensation is payable to householders, not on a voluntary basis but on a compulsory basis under the Compulsory Purchase Act 1965 and the Land Compensation Act 1973. I am not clear whether we are asking for additional compensation for particular groups of owners. Are they getting double the money that other people get? I was not clear on that, and I hope that the noble Lord can help.
	I wish to challenge the presumption on which the amendment is based. It assumes that airport expansion or development will have a negative impact on property prices. I challenge that very rigorously. Airport development is a catalyst for economic activity, investment, new jobs and higher incomes in the areas immediately surrounding airports. The increased wealth and new job opportunities increase demand for property conveniently located near the airport, and generally prices tend to rise rather than fall. The experience in Manchester is evidence of that. The area of the conurbation experiencing the highest house prices is south Manchester, which is conveniently located for the airport. People do not move away from airports. The Minister will know from his experience in Oldham that house prices in Oldham do not reflect the distance from the airport. Far from it; other factors comes into play. There is a presumption in the amendment that is wrong. House prices may well rise because an airport expands. When an expansion is announced—a new runway or a new terminal development—clearly some local people will not like it. We understand that.

Lord Hanningfield: My Lords, the problem is the blight envelope. There is no definite site for the runway, so the potential envelope for the development of the airport covers a very wide area. It is not that the houses will be lived in; they could well be demolished. People just do not know. Those are the people who are blighted. There is a cut-off and other people are just over the other side. It is not that those houses will be lived in and become valuable assets later on; they probably will not even exist, all depending on the siting of the runway. They are blighted for some years because of the uncertainty of the situation. That is why the scheme of compensation is not seen as adequate by local people.

Lord Smith of Leigh: My Lords, I thank the noble Lord for his intervention, and I think we can understand that. What scheme of compensation does the noble Lord regard as being adequate? A limit must be drawn somewhere. Presumably wherever the line is, be it three miles further down from the current line or whatever, there will be someone over the road from that line and they will think it is not fair and they will want more money. Clearly, there are short-term effects of any development, and one has sympathy with individuals affected by this case. Legislation is there to protect people who are adversely affected by any development—whether at an airport or another development—and I think that protection should be adequate.

Lord Davies of Oldham: My Lords, I have a long response, because this is an extremely difficult issue. I am grateful to my noble friend, who has reduced my response by a third. He emphasised in such a cogent way that of course the noble Lord, Lord Hanningfield, can identify issues with regard to airport blight, but it would be a far cry from reality if we looked on the development of all airports as bringing nothing but blight to their localities—very far from it.
	I hear what the noble Lord says about the proposals regarding Stansted, but I recall that Stansted was first developed with its first runway nearly 30 years ago. The same kind of arguments could have been put at the time; I am not sure whether they were as I do not have that power of total recall that is necessary on such occasions. I remember gloom and doom suffusing quite a large part of the area, even among people living some 25 miles or 30 miles away, who subsequently would say that the airport has produced very real benefits as well. After all, a lot of people who live in the vicinity of airports earn their living through the airport. So I am grateful for that context, although I am going to address the noble Lord's amendment and stick strictly to the issues.
	The issue of generalised blight is presently before the courts, primarily in connection with the voluntary blight compensation schemes introduced by the operator of Stansted airport, but potentially with wider implications. A permission hearing in that case took place on 13 and 14 December, resulting in a decision by the judge to refuse the claimants permission to apply for judicial review. We believe that the claimants will shortly be seeking permission for leave to appeal to the Court of Appeal. In view of this, I do not think that it is appropriate for me to comment further on the particulars of any specific schemes to address generalised blight. I am therefore obliged to step away from that illustration.
	This is a difficult and complex issue that cannot be addressed in the way that the amendment suggests. Let me make the obvious proposition, which is the bedrock of my argument: why should airport development be singled out in this way? I know that as we are discussing the Civil Aviation Bill the noble Lord is properly discussing airport blight, but the concept of generalised blight is extensive and not only airports generate that issue. The operation of the property market as a whole has long been dependent on the general acceptance that the ownership of any land or property carries with it an associated risk that external factors may give rise to conditions adversely affecting its enjoyment or eventual resale value, and the assumption of caveat emptor applies.
	A wide range of factors—natural and man made—can result in property blight. The noble Lord is identifying one factor. Generalised blight can occur before the true effects of the proposed development are known, and in many cases even before a planning application is submitted. An issue that can arise in some cases is finding the right balance between accepting such risks as inevitable—a concomitant risk of property ownership—and compensating those whose private interests are being threatened by schemes intended for the wider public good. The law already provides for compensation where land would be taken by the proposed development; for example, where compulsory purchase would be necessary. The noble Lord will recognise that we have law covering such eventualities.
	In addition, the law already provides for compensation for loss of value arising from certain indirect effects of future development during construction, such as construction noise or dust, under the Compulsory Purchase Act 1965. Additionally, under Part I of the Land Compensation Act 1973, those affected by future development, including airport development, but whose land will not be taken by the development, can claim compensation for loss in the value of their property attributable to the operation of the development. But this does not apply until 12 months after the development has been used for the first time; for example, 12 months after a new runway is brought into operation.
	It is an important and necessary principle of statutory blight compensation under Part I of the 1973 Act that it is assessed after the works have been completed and brought into use when the true consequences, both positive and negative, can be assessed objectively. This is not the case with generalised blight, which depends primarily on the attitude of potential purchasers of a property to a proposal for development nearby, which furthermore may not be granted planning approval. Such attitudes are highly susceptible to misperception, misrepresentation and uncertainty. In many cases generalised blight can be the result of all three. It can also give rise to a current of anxiety and in some cases even to irrational concern which, in turn, can undermine the strength of the property market to an unwarranted degree.
	While proposals for development may coincide with a reduction—or indeed an increase—in property values, the causal link between the proposed development and depreciation or, in some cases, appreciation is much more difficult to establish than in the case of statutory blight. It was in recognition of these factors, during preparation of The Future of Air Transport White Paper, that discussions were held with major airport operators to consider what steps they could take on a voluntary basis to help stabilise the housing market around their airports if proposals for new runways were taken forward in the White Paper, with the aim of helping those worst affected and with a genuine and urgent need to move.
	The position is set out in paragraphs 3.18 and paragraphs 12.13 to 12.17 of the White Paper. For example, it says in paragraph 11.41, in the case of Stansted airport, that:
	"The airport operator will need to put in place a scheme to address the problem of generalised blight resulting from the runway proposal".
	That is exactly what the British Airports Authority has done. It has consulted on and put in place three schemes to address different aspects of the generalised blight arising from the proposals for a second runway at Stansted. The schemes are similar to others in the past in connection with major road and rail proposals, such as the channel tunnel rail link. BAA has brought forward similar voluntary schemes at Heathrow, Gatwick, Edinburgh and Glasgow. The airport operator at Birmingham is currently consulting on revised voluntary compensation schemes and the operator at Luton is expected to bring forward its own proposed mitigation measures shortly. These voluntary schemes do not affect the statutory rights of property owners in due course.
	Beyond the clear policies set out in the White Paper the Government contend that they should have no role in determining the scope or terms of non-statutory schemes brought forward by airport operators to address generalised blight. They are, necessarily, voluntary schemes for the reasons I have explained. The main concern and causal factor where generalised blight is associated with proposals for new airport runways is anxiety about future aircraft noise. It is sensible therefore for voluntary blight schemes to use forecasts of future noise to identify areas likely to be affected. One consequence of that approach is that some people in areas forecast to experience low levels of aircraft noise feel aggrieved at not being included within the scheme, which is intended for those who experience higher levels. However, voluntary generalised blight schemes that are not related to recognised causal factors can have the perverse effect of spreading generalised blight and making the situation worse.
	The effect of the amendment would be to bring generalised blight within a statutory planning framework for the first time, but it would do so for one economic activity only: civil airports. The Government contend that that is the basis why the amendment should be rejected. Generalised blight is not an issue unique to airport development. It can arise from any major development or infrastructure project. The effect, therefore, would be discriminatory. Other comparable areas, such as other transport modes, heavy industry, chemicals manufacture, waste disposal and energy generation, would continue to be subject to the established position, while civil airports alone would be expected to compensate for generalised blight, whether or not the perceived risk of depreciation in property values was soundly based.
	The effect would also be discriminatory in other ways. Where airport expansion involved the development of new surface access infrastructure or major improvements to existing road and rail infrastructure, as it often does, the amendment is not clear as to whether the owners of properties said to be blighted by the airport-related road and rail proposals should also be compensated under the airport scheme. Indeed, would that be necessary, to avoid unfair discrimination, even though road and rail infrastructure seldom serves just one role, such as an airport?
	If the effects of the airport-related road and rail proposals were included in the airport compensation schemes directed by the Secretary of State, the result would then be discrimination between property owners affected by airport-related road and rail proposals but not those who suffer road or rail proposals elsewhere. That also would be unfair and irrational. The effect of the amendment would be to place a major obstacle in the way of airport development, due to the potentially high costs it could bring to any project, but more so, the high degree of uncertainty as to what those costs might be in the absence of a clear causal link between the effects of the proposed development and property values. It would deter airport operators from bringing forward proposals for airport expansion, which would harm the competitive position of UK civil aviation and damage the wider economy.
	The amendment would also make it difficult for airport operators to consult properly and widely on their development proposals at an early enough stage—when genuine options are on the table—to allow for the views of consultees to be taken into account. Consultation is indeed a requirement in many cases, but, if consultation were to carry the risks and burden of compensating for generalised blight, that would obstruct the necessary development of the nation's infrastructure and export to other countries the jobs and the wealth to which my noble friend Lord Smith referred.
	Finally, the territorial application of the proposed amendment is not clear. Although most aspects of civil aviation are reserved matters, most local planning matters are devolved.
	I conclude by saying that successive governments have looked at the matter closely. That happened most recently when we considered planning and transport issues between 1997 and 2001, when relevant Ministers found good reasons not to introduce legislation that would bring generalised blight in the statutory framework. We all know the consequences of generalised blight; we all recognise the social and economic problems that obtain there, but we have looked at this very closely, and we reached our judgments on the basis that it would be wrong to introduce, as this amendment would, for one relatively narrow area of economic and planning activity compensation for a concept that is much wider than the noble Lord has indicated. I hope that he will feel able to withdraw the amendment.

Lord Hanningfield: My Lords, I thank the Minister for that comprehensive reply. This issue is rather different. From my local government career, I am very familiar with blight for all sorts of reasons and in relation to all sorts of issues. The area of this airport expansion is enormous—miles by miles. The proposal is not just to add a bit to a runway or to an airport. It encompasses several villages and a great chunk of Essex and therefore affects lots of people.
	The Government came up with a policy statement, which has since been overruled in a judicial review, about siting a runway miles away from the existing runway. That would blight a great chunk of the county. If the runway had been close to the existing airport, one could perhaps accept a lot of the Minister's arguments. I hope that the Government will have learnt a lesson from this for the future. If you come up with a policy statement, you can blight great chunks of countryside even when the development might not happen. Of course, the whole process takes seven or eight years, so you have blighted these properties and this area of land for a long while.
	I will not press the amendment today, but I wanted to air the issue again. It is a policy area that any government must consider. I am talking about blighting a whole area. It is not like what would happen with a waste plant, road or rail line; a great chunk of countryside is affected. Before announcing such a proposal, any government must think carefully about how it will impinge on hundreds of people's lives, properties, homes and livelihoods for many years. Whatever wealth is ultimately generated from the expansion of the airport, the process takes so long that it harms a lot of people and makes a lot of people unhappy. I hope that we have had enough debate to ensure that, any time the issue arises again, governments will think rather more deeply about it. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Hanningfield: moved Amendment No. 5:
	After Clause 11, insert the following new clause—
	"RELIEF FROM LIABILITY IN THE EVENT OF WAR ETC
	(1) Section 76 of the Civil Aviation Act 1982 (c. 16) (liability of aircraft in respect of trespass, nuisance and surface damage) is amended as follows.
	(2) In subsection (2) for "subsection (3)" substitute "subsections (3) and (5)".
	(3) After subsection (4) insert—
	"(5) No liability shall be incurred by the owner of the aircraft (or the person to whom it has been demised, let or hired out) if he proves that material loss or damage as aforesaid—
	(a) resulted from an act of war, hostilities, civil war or insurrection, or
	(b) was due wholly to anything done or omitted to be done by another person, not being a servant or agent of the owner (or of the person to whom it has been demised, let or hired out) with intent to do damage.""

Lord Hanningfield: My Lords, we have debated the merits of this amendment on three previous occasions and, on each occasion, we have failed to elicit a satisfactory answer from the Minister. I shall not rehearse the arguments again in great depth, but I must reiterate the main arguments.
	Under our present law, which was introduced over 85 years ago, the aircraft owner is made absolutely liable, without defences or limits, for damage caused by an aircraft to persons or property on the ground. The world changed abruptly on 11 September 2001, when four civil passenger aircraft were converted into weapons of mass destruction. Within 11 days, Congress passed emergency retrospective legislation to protect US air transport and to create a victim compensation fund. The total cost so far is estimated at around $40 billion and, as we know, litigation continues.
	We do not need the same sort of legislation in the UK. Since 1964, we have had a system for compensating the human victims of violent crime and, today, all 25 European Union states are required to have something similar. For property damage, we have had a Treasury-supported scheme since 1993 to ensure that adequate insurance is available for terrorism risks. The cost is met by premiums charged to property owners and to their insurers. The amendment will not change that; there will be no new burdens for the British taxpayer.
	We must face reality. The threat of terrorism from the ground or in the air has not gone away. If anything approaching 9/11 should succeed over here, it could easily transcend the limits of available insurance, and the financial consequences could wipe out the interests of the British or foreign airline involved.
	It is a matter of considerable regret that the Minister has not changed his position in the slightest degree. That means that he has not been able to fault our basic arguments. Although he has been good enough to concede that the present position is unsatisfactory, what does he propose? He clearly hopes that a solution will emerge from the present work of the International Civil Aviation Organisation, which is charged with modernising the 1952 treaty. Last month, in Montreal, the special group of ICAO seems to have reached the conclusion that not one, but two separate, unlinked treaties may be necessary—one dedicated to terrorism alone—all subject to further directions from the council of ICAO.
	Even assuming that there are no further changes of direction, we cannot wait to see what might emerge. We would be failing in our duty to the peaceful aims of the international air transport industry, on which so many depend, if, nearly five years after 9/11, we failed to take the simplest steps to minimise the risk of financial disaster for British and foreign aircraft operators.
	The amendment provides a simple and non-controversial solution. I would like to think that today we could persuade the Minister to refrain from reciting, as he did on Report, the substance of his departmental brief, just as if we had offered no answers or corrections to what were, I think, his misleading remarks. In particular, I deeply regret the fact that we have not received an answer to the fundamental question that I first posed on 8 December, when I asked,
	"exactly why airlines should bear any responsibility for terrorist attacks".—[Official Report, 8/12/05; col. GC173.]
	What on earth is the justification for saying that innocent aircraft owners should be liable for the financial consequences of war or terrorism? The House deserves an answer to that basic question. With no other solution in sight, our amendment is a modest and timely step in the right direction, providing sensible and conventional defences for innocent aircraft owners of all nationalities in our airspace. I beg to move.

Lord Clinton-Davis: My Lords, one of the principal virtues of the amendment moved by the noble Lord, Lord Hanningfield, is that it would impose no new burdens or imposts on the British taxpayer. That is an important point to emphasise. The present position is, of course, entirely unsatisfactory, as my noble friend the Minister has admitted. He has said that he hopes, perhaps somewhat optimistically, that the ICAO discussions will have an acceptable outcome.
	We are light years away from that situation. The ICAO special group considered that two separate, unlinked treaties might have to come into operation. As has been noted, one is associated with terrorism. Because of that, it would be subject to the approval of this Parliament and, presumably, many other Parliaments. Can we afford to wait? That is the question that the noble Lord, Lord Hanningfield, has posed. Perhaps an initiative taken by us would spur others to get a move on.
	Why cannot we say in the legislation that our proposal will come into effect X years from now? That would give an indication of our bona fides. I understand that the proposed regime already applies to ship owners. Why should the protection afforded not also apply to aircraft? The Minister said that the position for shipping was entirely irrelevant. Will he kindly explain why? I neither understand nor accept that.
	The noble Lord, Lord Hanningfield, raised a basic question, which remains unanswered. He posed it again tonight. He asked why airlines should bear any responsibility for terrorist attacks. That remains a vital and unanswered question. I support the amendment.

Lord Davies of Oldham: My Lords, I am in some difficulty. If I present arguments against the noble Lord, Lord Hanningfield, he says that they are not good enough and that they were not last time, but I shall say the same thing again. He presented his arguments last time, and he said the same thing again. My arguments will not be good enough for him because they were not last time, but neither were his. We do not accept some of the basic premises on which the noble Lord argues. He says that I am not to use the departmental brief. I do not need to use the departmental brief because the principles that the noble Lord puts forward are so mistaken that all noble Lords who do not have the benefit of the departmental brief will see why the Government have right on their side.
	In straightforward terms that have nothing to do with the complex arguments in my departmental brief, the Opposition are saying that we should change UK law for UK aircraft involved in this situation because this is a UK matter. The Government say that airlines and aircraft are involved in international travel. War and terrorism are international phenomena. The damage done may be in this country, but it may be overseas. The matter cannot be governed by international law alone; it is an international problem that needs an international solution.
	I am sorry if my department thought of this and it seems that I am therefore guilty of having learnt it from the departmental brief, but I assure noble Lords that that is not so. That is the fundamental division between us. I could reiterate the argument in a range of increasingly diffuse and subtle ways, but that is the heart of the difference between us. That is why the noble Lord was forced on two previous occasions to repeat his arguments—to his own satisfaction, but not to mine—and that is why my refutation on two previous occasions did not meet his requirements and will not do so today. I have nothing further to add to the overall position than that.
	My noble friend introduced an extra dimension, and I shall take a shot at responding. I spoke from the wretched departmental brief on a previous occasion, when I said that we thought that the amendment emerged from some comparison with maritime law. My noble friend has made that explicit today. He said that international maritime law provided for different aspects, so why cannot we attribute to aviation law similar concepts?
	There are several international conventions in maritime law to which the UK and many others are party that address ship owners' liability for acts of terrorism and the resultant pollution. Noble Lords will recognise that the law of the sea has to cover those issues because of, in particular, pollution of a third party's territory. Liability and compensation are treated hand in hand. There is no international convention governing aviation law in those terms, so we have nothing to fall back on. There is no corpus of law governing the international provision of aviation that meets that point.
	The noble Lord was kind enough to say that he thought that I would seek to produce some argument along the lines of an international solution. Both he and my noble friend Lord Clinton-Davis doubt the extent to which the International Civil Aviation Organisation could produce an early solution to this complex problem. They are right to have those doubts. None of us thinks that the development of treaties that govern this area will be easy or speedy, so I share their doubts on that point.
	Before my noble friend intervenes again, I should say that it is recognised that, in the shorter term, the Government accept the need to be ready in case airlines are exposed to totally uninsurable risks. After 11 September 2001—I am sorry for repeating what I said in Committee and on Report—I said:
	"Should another terrorism incident lead to a lack of third party insurance, such that the UK aviation industry was unable to operate, the Government's intention would be to intervene as we did after September 11th".—[Official Report, 8/3/06; col. 834.]
	On those occasions, we identified the same gap that noble Lords have identified in this debate. We took the necessary action as a stop-gap measure. We hope that there is never occasion to do that again, but we undertake that, if necessary, we shall act in like manner. Aviation cannot be subject to anything except international law in the long run. That is why we cannot abstract from international aviation law a parallel with maritime law, and that is why the amendment will not hold.

Lord Clinton-Davis: My Lords, my noble friend has been very frank, but I am concerned about the situation. He said that if there was another emergency, Britain would act unilaterally. I propose that a spur should be given to the negotiations at ICAO. I also indicated that we should not act immediately but that the legislation should provide that we are at liberty to do so. Presumably, my noble friend disagrees with that.

Lord Davies of Oldham: My Lords, I disagree because the legislation is about the long term. We expect primary legislation to obtain over a number of years. The temporary measure that we took after 2001 might have to be repeated if a tragedy similar to that should occur again, in which case I undertake that the Government will recognise that there can be an uninsurable problem for the aviation industry. We are making it clear that we intend to sustain that industry through such an acute, particular and precise difficulty, but when it comes to the law, aviation will be subject to international treaty and agreement. That is the only way. Britain acting alone through its own legislation is not the answer.

Lord Hanningfield: My Lords, one good thing about the amendment is that I have been able to work with the noble Lord, Lord Clinton-Davis, with all his experience of aviation matters. Again, as I expected, I am disappointed by the Minister's answer. I am grateful, as I am sure others will be, for the Government's guarantee to intervene if the system is collapsing. That is an important commitment.
	We wanted the Government to take some initiative. We agree that there have to be international treaties. However, even the maritime treaties are not signed by everyone. We have had debate in the House. Half the countries have not signed up to the maritime treaties. We seek to encourage others to sign. We still want to work towards international treaties, but we could have made some start. I disagree with the Minister that we could not have done so.
	We have had three debates on the matter. We have aired the issue. The Government have given a commitment to intervene if need be. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness D'Souza: moved Amendment No. 6:
	After Clause 11, insert the following new clause—
	"AIRCRAFT INVOLVED IN ACTS OF RENDITION
	(1) If the Secretary of State is aware of intelligence that any aircraft entering British airspace is being, has been or may be involved in an act of unlawful rendition then he may require that aircraft to land at a designated suitable airport.
	(2) If any plane is required to land in accordance with subsection (1) a responsible person shall as soon as practicable—
	(a) enter the aircraft; or
	(b) arrange for a police constable or authorised officer of Her Majesty's Revenue and Customs to enter the aircraft.
	(3) If the Secretary of State or other responsible person is aware of intelligence that an aircraft using airport facilities in the United Kingdom is being, has been or may be involved in an act of unlawful rendition then a responsible person may make arrangements to—
	(a) enter the aircraft; or
	(b) arrange for a police constable or an authorised officer of Her Majesty's Revenue and Customs to enter the aircraft.
	(4) A person who enters an aircraft under subsection (2) or (3) shall endeavour to ascertain—
	(a) whether the aircraft is being, has been or may be used for an act of unlawful rendition;
	(b) whether a criminal offence has been committed;
	(c) whether allowing the aircraft to continue could place the United Kingdom in breach of its obligations under the European Convention on Human Rights;
	and for these purposes the person may search the aircraft.
	(5) In order to comply with a power under subsection (4) any item may be removed from the aircraft.
	(6) For the purposes of this section—
	"an act of unlawful rendition" is an act involving the transportation of a person to a territory where international human rights standards, in particular protections against torture and inhuman and degrading treatment, are not observed, such transportation not being in accordance with formal lawful extradition or deportation procedures;
	"a responsible person" means—
	(a) the chief officer of police of a police force maintained for a police area in England and Wales;
	(b) the chief constable of a police force maintained under the Police (Scotland) Act 1967 (c. 77);
	(c) the Chief Constable of the Police Service of Northern Ireland;
	(d) one of the Commissioners for Her Majesty's Revenue and Customs."

Baroness D'Souza: My Lords, the amendment would ensure that the UK could not in the future be in any way involved in the practice of extraordinary or unlawful rendition. There are no new arguments at this stage. I merely want to summarise and answer the Minister's response on Report.
	I am very grateful to the Minister for a generous meeting earlier this week. He agreed on Report that there were no legal obstacles to stopping and searching aircraft suspected of being involved in unlawful rendition and that in fact the relevant conventions place a positive duty on governments to do so. He also said that adequate provisions already existed and that agreement had been reached with the US whereby it,
	"would have to seek our permission and we would seek reassurance that it was acting in accordance with international law".
	The Minister was asked in writing by myself and the noble Baroness, Lady Williams of Crosby, to point us in the direction of the existing legislation, to say when and where it had been used and to what effect, and to provide any formal or public statement of the agreement reached with the US on this matter. Had there been satisfactory answers to those questions I would certainly not have moved the amendment for the third time at Third Reading, but unfortunately there are no answers to what appear to me to be perfectly legitimate queries.
	The Minister says that the ordinary police powers cover the searching of aircraft, but has no instances in which those have ever been used. He repeats that there is no credible evidence that the UK has ever been involved in facilitating extraordinary rendition. But the law requires only "reasonable suspicion", and I believe that that is fully justified by the evidence from around the world that this odious practice has undoubtedly taken, and is taking, place.
	The Minister quotes from a speech recently made by the Foreign Secretary, Jack Straw, in which assurances from the US have been sought and met. I respectfully submit that these words are not sufficient and do not reassure me. Nor do they convince me that there is any new agreement with the US or firm intention to ensure that the UK has made it abundantly clear that it will never condone any aspect of unlawful rendition.
	Here I must at least mention the report of the Vienna Commission which was published after Report stage. This body was set up by the Council of Europe specifically to examine the legal obligations of member states with regard to interstate transport of prisoners and secret detention centres. The findings by six independent legal experts are unequivocal. I quote three short sentences from this document. It states that,
	"it is worth underlining that Council of Europe member States are under an obligation to prevent prisoners exposure to the risk of torture . . . member States should therefore refuse to allow transit of prisoners where there is such a risk . . . as long as the plane is in the air, all persons on board are subject to the jurisdiction of both the flag State and the territorial State".
	It insists that member states,
	"must take all possible measures in order to prevent the commission of human rights violations in its territory, including its air space".
	I do not think that the response we have had so far from the Government will give the public confidence that there are adequate procedures to pre-empt any future involvement in extraordinary rendition. Therefore, I beg to move.

Lord Archer of Sandwell: My Lords, my noble friend has pursued this matter assiduously through successive stages of the Bill. She has argued it, if I may be allowed to say so, with compelling advocacy. I would not presume to seek to embellish what she said.
	I regret that for a succession of reasons I was not able to participate at earlier stages. I intervene now to address two issues raised by my noble friend the Minister. First, referring to aircraft which are on the ground either to take advantage of airport facilities or because they have been required to land, he said that the amendment is unnecessary because the authorities—presumably the police and Revenue officials—already have power to enter the aircraft and ascertain the purpose for which it is being used. My noble friend did not specify the powers. I make no complaint of that. Like my noble friend Lady D'Souza, I am grateful for the time the Minister spent with us yesterday. However, I have had to speculate to what powers he was referring. I think that there was a reference at some point to the Police and Criminal Evidence Act 1984. Since it was not clear to which provision in the Act he was referring, I have had to make such searches as I can.
	I accept that by Section 23, "premises" includes aircraft, so we can begin by agreeing on that. I was able to find three provisions in the statute to enter and search premises. Section 1 gives a constable power to search if he has reasonable grounds for suspecting that he will find stolen or prohibited goods. Section 8 empowers a justice of the peace to authorise a search of premises if there is evidence of a serious arrestable offence, there is material there which is likely to be of substantial value to the investigation, and it will provide relevant evidence. Section 17 gives power to enter premises for certain purposes, the major one being the purpose of making an arrest.
	None of those provisions appears to address the purpose we are discussing today. To put it at its lowest, it is not difficult to envisage circumstances where a plane is being used for extraordinary rendition where none of those provisions applies. Unless my noble friend knows of other powers which may solve the problem, there seems to be a need for subsection (3) of my noble friend's new clause. I should add that all those powers require "reasonable grounds for suspicion".
	The difficulty we face is that the officials may not be able to demonstrate grounds for suspicion of a particular aircraft. Aircraft are not transparent. The suspicion may apply to a category of aircraft which may be a fairly limited one. It is unlikely to entail a large-scale operation. The situation is most likely to arise in connection with state aircraft, and in the Chicago convention that expression includes aircraft in military, customs and police services. Under Article 3 of the convention, no state aircraft is entitled to fly over the territory of another state or land on such territory without authorisation by special agreement or otherwise. That may help to answer the question asked by my noble friend and the noble Baroness, Lady Williams of Crosby.
	That authorisation is unlikely to be granted if the authorities in this country are not aware who the operators of the aircraft are. It is basically where the operators transpire to be certain police or intelligence agencies or—not to be too mealy mouthed—the CIA or the FBI. I suggest that even if nothing further is known about the journey in question, there is reason for further inquiry. I shall return to the reason for that. Within that category, some aircraft will be eliminated quite simply. Those remaining are not likely to entail a massive operation to enter and search them.
	My noble friend the Minister is concerned that a search may cause delay—that was his second issue. But a state aircraft will require authorisation in order to land, or it will have been required to land. If that authority or requirement is made, what is the difficulty in arranging for an official to be available when it lands? If such an official is available, what delay or inconvenience will be occasioned by his entering the aircraft and seeing who or what is there?
	My noble friend's amendment does not seek to make a search compulsory. It would simply empower the Secretary of State, or other responsible official, to conduct a search if there is intelligence leading him to consider that a search should be conducted. The intelligence will surely need to be considered in the context of what is known about the previous activities of the operators. If a criminal jury is now to be entitled to take account of previous convictions, surely officials should assess the situation in the light of the operator's record in so serious a matter as we are discussing.
	Perhaps I may refer to three instances. None of them has been the subject of a trial in a court of law, but that is the decision of the American authorities. The United States has not ratified the statute of the ICC, and they have not been prosecuted in the American jurisdiction, which is where they would otherwise be prosecuted.
	In September 2002, Canadian officials authorised the removal to Syria of a Syrian-born Canadian citizen, Maher Arar. While in transit at John F Kennedy Airport, he was taken into custody by FBI officials. He alleges that he was shackled. His request to see a lawyer was refused on the grounds that, since he was not an American citizen, he did not have the rights of an American citizen. He asked to be sent to Canada, since he was Canadian, but that request was refused. He was then put on an aircraft and taken to Amman in Jordan, and from there to Syria, where he was detained for 10 months, beaten and tortured. He has never been charged with an offence. The Canadian Government have established an inquiry into the case, but the United States Government have declined to participate.
	Secondly, in September 2003, Khalid al-Masri, a German citizen, was kidnapped in Macedonia. He was flown to a United States prison facility in Afghanistan, where he was detained for four months, allegedly beaten, and then dumped at the roadside. The United States authorities have neither confirmed nor denied those allegations. The American Civil Liberties Union has now launched a lawsuit against the CIA.
	Thirdly, Mustafa Nasr was kidnapped by the CIA in Milan, where he was a resident. He was taken to the US military base at Ramstein in Germany, and from there to Egypt, where he claims he was tortured. In December 2005, European arrest warrants for those allegations were issued against 22 CIA operatives. As my noble friend has said, investigations are going on in Europe.
	I understand that the searches contemplated by my noble friend will not be easy. Feathers may be ruffled, at least in the early stages, and we are all concerned with what has been called the comity of nations. But we are discussing a risk of people being taken to where they may be tortured. That concern is, on any showing, not a fanciful one. If there are problems, a serious attempt is required to address them. This amendment would ensure that there is the power to do that.

Lord Garden: My Lords, I support the amendment, which is also in my name. Having made the case in Grand Committee and on Report, I can speak briefly. Indeed, the arguments of the proposers have not varied at any stage; the reasons the Minister has given for resisting the amendment have changed radically. We were first told, in Grand Committee, that the amendment would abrogate our international obligations and hence wreck the Bill. On Report, the Minister accepted that this was incorrect and said that:
	"The amendment would not wreck the Bill, but would not add anything to the powers we have".—[Official Report, 8/3/06; col. 848.]
	We have subsequently sought, as other noble Lords have said, to find some examples where the current legislation has led to the investigation of suspicious flights—those which might be expected to be involved in the transport of people who would subsequently be interrogated under torture. No examples of our using this legislation have come to light, although we have a widespread and growing weight of evidence that the practice has been carried out for a number of years. The noble and learned Lord, Lord Archer of Sandwell, gave some of those examples.
	We have also sought to find out the status of civil aircraft chartered by governments for the purposes of rendition. This also remains unclear. Last time we discussed this, I asked how RAF Northolt could be used as a staging post for these aircraft without prior notification of the purpose and status of these flights. Again, we have heard no answers to these questions.
	From all sides of the House, including the government Front Bench, we have heard statements of total abhorrence of the practice of extraordinary rendition. We have the opportunity, through this amendment, to clarify and systemise the legal obligations, because they are obviously not clear to the authorities. I hope that the Government will, at this eleventh hour, support this amendment, and that all noble Lords will see that we need to do this if we are to stop the practice of extraordinary rendition through Britain.

Lord Campbell of Alloway: My Lords, I ask the indulgence of the House, not having spoken before on this amendment, which only came to my notice on the morning of Report stage, when I could not attend. I declare an interest as a member of the Joint Committee on Human Rights but, of course, speak only for myself.
	Extraordinary rendition is a term of art not known to public international law, as the purpose is interrogation under torture. This amendment does not foreclose upon this practice as such in our domestic law, which as yet recognises the defence of lawful authority, justification or excuse to a charge of torture. One hopes that it may soon be amended, albeit that this process is proscribed by the United Nations Convention against Torture, to which as yet the Government have declined to accept the right of individual petition.
	The narrative of events as already spoken to in Committee and on Report, which is not for me to report or rehearse, has not been accepted by the DCA, the MoD, the Home Office or any other department of state as far as I am aware. So is it not a reasonable assumption that, in the wake of 9/11, this arrangement for extraordinary rendition was made between President Bush and the right honourable gentleman, our own Prime Minister, and that it was implemented by the intelligence services under the shield of joint national security? If not, how else is it that no department of state accepts cognisance of what we know is going on? Has not the time come to shift that shield, without disclosing sources, and to provide, as is proposed by this amendment or in some similar amendment, that the Secretary of State should be answerable to Parliament?
	It is now common ground, having read Hansard, that under the Chicago convention, control of the aircraft is exercised by the Civil Aviation Authority on clearance for landing and take-off, and when the aircraft is grounded, it is subject to the provisions of the Chicago convention. It is assumed that the Civil Aviation Authority, under the practice spoken to in Committee and on Report, is given directions. Who gives those directions? How is the clearance arranged? Who knows about what is going on? Those are questions that the Minister is in no position to answer. But we as ordinary people are entitled to ask them. If airports are cleared for this purpose, who gives the instructions? Who is it who knows? If no department of state accepts cognisance, there is no control but Parliament. It is assumed that under this amendment those instructions would be given by the Secretary of State, that passenger lists would be checked, and that the ultimate destination and the purpose of the flight would be verified. But nothing like that appears to happen today.
	The Joint Committee on Human Rights has this amendment and is working on extraordinary rendition. As yet, however, it has received no evidence or any information to dispel my anxiety. I cannot speak for anyone else. However, I can say that there is much more work to be done and it shall be done. The report, which may not be presented at the moment, will be available before the Bill, when returned to another place, receives attention. It will be for another place to consider whether this amendment qualifies as a connected purpose related to the control of the Civil Aviation Authority under the Chicago convention. That is the matter which I would have touched upon the other day but I got it wrong.
	In conclusion, perhaps I may suggest in these exceptional circumstances that we borrow the concept that,
	"magnanimity in politics is not seldom the truest wisdom",
	and that the Minister, having recorded his objection, as inevitably he will do when the Question is put tonight, by concession allows the "Contents" to have it. That has happened once in my experience; I need not go into the details. I ask that to enable the report of the Joint Committee on Human Rights to be considered in one of the Houses of Parliament, having regard in particular to the provisions of subsection (4)(c) of the amendment. I know that that is a tall request but I ask it with humility and sincerity.

Lord Dykes: My Lords, I strongly supported Amendment No. 22 tabled by the noble Baroness, Lady D'Souza, on Report on 8 March. Many speakers in this debate have thanked her for her initiative in launching this new clause at Third Reading. I shall be brief, because the hour is late. It is clear that the Minister must provide some strong answers to the many queries that have been raised and to the legal points raised by the noble and learned Lord, Lord Archer of Sandwell, who was formerly Solicitor-General in another place. I shall not make any further points tonight, because of the lateness of the hour, but I shall say that we know that the reality is that if one discretely asks any important, reputable journalists from the media—the press, radio or TV—in leading countries, particularly leading EU countries or America, about these practices and whether they go on, at the least they would say that they are pretty sure that they do, or otherwise they say that they are certain that they are going on. The Government must not be a party to illegal actions by the CIA or any other American entity of that kind. Therefore, we beg the Minister to give convincing answers tonight before this debate is concluded.

Lord Lamont of Lerwick: My Lords, I support the noble Baroness, Lady D'Souza, and I am grateful to her for bringing this matter forward again. I was not able to be present on the previous occasion when this was debated, although I read the Minister's reply. On that occasion, the Minister suggested that the issues could not be dealt with by an amendment because they went beyond the scope of the Bill and that we were bound by international conventions. However, as has been pointed out tonight, a state does not need to rely on any treaty in relation to its jurisdiction over foreign civil aircraft, whether on the ground or in the air. It has the right to investigate whether an unlawful activity is being carried out on the ground or in its airspace.
	I can, to some extent, anticipate what the Minister will say. We will be told that it is inappropriate to agree such a far-reaching amendment; that it is not to do with the content of the Bill; that it will be inappropriate; that it will sit uneasily in the Bill; and that it will probably be full of practical difficulties. Looking at this issue, which is of huge importance, even if the Minister does resort to those arguments, and even if I were convinced by them, I would still vote for the amendment because of the gravity and seriousness of the issue that has been raised. It cannot be denied that extraordinary rendition—to distinguish it from "rendition", which is the rather hideous distinction that is made—is happening and is being practised.
	The three cases that the noble and learned Lord, Lord Archer, quoted are the ones that I would have picked of the cases that are public knowledge. What is significant about those three cases is that the three governments of the territories where the people were captured were all conducting investigations into them. In the instance in Italy where an Egyptian was seized on the streets of Milan, as the noble and learned Lord said, warrants have been issued for the arrest of several CIA agents; in the case of the German who was captured in Macedonia and then taken to Afghanistan, the German Government are investigating that; and in the case of the Canadian, who was taken first to Jordan, then to Syria and then back to Canada with no charges being levied against him, the Canadian Government are conducting an investigation into that, in which the United States Government have refused to participate.
	That very strongly suggests that extraordinary rendition is occurring. Perhaps the Minister would answer this one question for me. It is a rather unfair question for his portfolio. But, if the transfer of those people was not for the purpose of torture, for what reason could it have been? Why take someone from Macedonia to Afghanistan or from Milan to Egypt in order to interrogate him? What purpose other than exercising undue force on people could there be for these interrogations? The evidence that something undesirable is going on is strongly suggestive.
	I would not agree with the suggestion of the noble Lord, Lord Campbell, that perhaps there was some agreement between the President and the Prime Minister. I would not accuse the Government of that. But I feel that the Government are turning a blind eye. They are not asking enough questions about what is going on. There is plenty of evidence, as was said by the noble Lord, Lord Garden, of CIA flights in and out of this country. Putting that aside, there are the cases referred to by the noble and learned Lord, Lord Archer. The Government have to give a fuller answer and demonstrate that they are taking some precautions in order to ensure that this country is not being directly or indirectly involved in this.
	I accept the assurance of the Foreign Secretary that—

Lord Campbell of Alloway: My Lords, the noble Lord was good enough to mention my name. I thank him for giving way. If the noble Lord objects to what I put forward as a probable assumption, could he tell the House how on earth this could have arisen?

Lord Lamont of Lerwick: My Lords, there is strong suspicion that this is American practice. There is no reason to believe that the British Government have actively made an agreement with America. But I think that the Government are not asking questions and not seeking reassurance about what is going on in our territory with aircraft landing and over flying here.
	I would accept the assurance from the Foreign Secretary that Britain does not participate in rendition. The British Government do not transport people to where they are tortured. But I must say that I have more scepticism about what has been said by the American Secretary of State, Condoleezza Rice. Although she has said that the American Government do not transport people to be tortured, there seems to be some evidence that there is a difference between the internationally accepted definition of torture and that used in the United States. That also came out in the debates in the American Senate when Vice-President Cheney sought to persuade American senators that they should not vote for the McCain amendment. What some Americans authorities think of not as torture, but acceptable force, would fall within normal international definitions of torture. I refer to such practices as water boarding, which to my astonishment has been defended in some very reputable American newspapers, on the grounds that, "If our troops are trained to resist these practices, we can use them against anyone".
	The whole idea of extraordinary rendition and the use of torture is appalling. Any association with it is damaging to this country. This country has been damaged by what has happened in Abu Ghraib and in Guantanamo. All these things have rolled into the issues that have arisen in the Iraq war. That is why it is important, for our own reputation and because it is right, that the Government should act positively and proactively to find out what is happening.

Lord Davies of Oldham: My Lords, I am grateful to all noble Lords who have participated in another debate on this issue which exercises us all greatly. The one jarring note to which I should like to respond is the suggestion of the noble Lord, Lord Garden, that the Government's arguments have changed during the course of proceedings on the Bill. They changed on one occasion. When the amendment was first tabled knowledge of the issue was very limited. My department, the Department of Transport, has limited responsibility for these issues and we gave the best reply we could to an amendment which was tabled the night before and to which I responded that afternoon. I subsequently indicated that the issue was different from the basis on which we were anxious about the matter. That is the only change in the Government's position. I freely admitted that on Report. I want to emphasise that the Government are not changing their arguments again this evening but are seeking and maintaining total consistency in our position.
	Of course we all recognise that the concept of extraordinary rendition is unacceptable. I want to emphasise that although I recognise the various cases used today to illustrate the case that rendition may be occurring—it is for the House to judge that of course—none of them involves the United Kingdom directly. We made our position absolutely clear in ministerial Statements and in answers to Parliamentary Questions. Since this Government came to power, they have authorised the use of UK facilities for two prisoner transfers to the United States where the prisoners were subsequently tried and we declined to facilitate two other transfers.
	It has been widely reported that specific US-registered aircraft, allegedly linked to the CIA—and of course these issues arose again this evening—have used UK facilities for renditions. There is no compelling evidence to suggest that those aircraft were linked to unlawful activity while in or over flying the United Kingdom. If credible intelligence of serious illegal activity—the definition of "extraordinary rendition" that has informed this debate would be serious illegal activity—comes to light regarding an aircraft in flight, the Government can require the aircraft to land. Article 3bis of the Chicago convention allows states to require aircraft to land if there are reasonable grounds to conclude that the aircraft is being used for any purpose that is inconsistent with the aims of the convention.
	If the aircraft is on the ground, the control authorities—the police, Customs and immigration—already have a variety of powers to enter, take evidence and make arrests. For civil aircraft, the police could board an aircraft in the UK if they had reasonable suspicion that certain crimes were being committed within UK jurisdiction under UK law. My noble and learned friend Lord Archer pressed me on this point, and, with his usual diligence and accuracy, has done the researches necessary. I confirm that the police have power to enter premises to arrest for indictable and certain other offences under Section 17 of the Police and Criminal Evidence Act 1984. For this purpose, premises are defined as including any aircraft. That is in Section 23 of the Act. Because the police enjoy their usual powers of entry, the powers available would vary depending on the offence that is thought to have been committed. A justice of the peace may issue a search warrant to enter and search premises, including aircraft, where there are reasonable grounds for believing that an indictable offence has been committed.
	If someone is being transported for the purpose of being tortured, those who are exporting that person are likely to be aiding and abetting the unlawful act of torture and so committing an indictable offence under Section 134 of the Criminal Justice Act 1988, so triggering the power to enter the premises that I have just described. So there is no doubt about the powers that the police enjoy to carry out necessary action on aircraft where there is reasonable suspicion of an offence being committed. If what was being committed is that which was described by noble Lords this evening, I have indicated that that would be a clear offence.

Lord Archer of Sandwell: My Lords, does my noble friend understand that in many of the instances cited, those who export—as he put it—the individual for the purpose of being tortured are taking him to somewhere where there is a serious risk that he may be tortured? They may not be complicit in the torture; they are simply sending him somewhere to be interrogated without caring very much whether or not he is tortured.

Lord Davies of Oldham: Yes, my Lords, but it would be sufficient that they were escorting an individual to such a potential fate, if there was a reasonable suspicion that that is what was being carried out. That is the point that I am trying to emphasise.
	The wider issue of the transportation by air of persons deprived of their liberty was addressed in the recent investigation and report by the secretary-general of the Council of Europe. Her Majesty's Government provided a full response to his inquiry, including information on the powers that we already have. That is available on the Council of Europe website. The secretary-general's report, issued on 1 March, acknowledged that the United Kingdom had provided full answers to all the questions put. The secretary-general plans to make proposals, including a review of the current international legal framework for air traffic and the adequacy of safeguards, to ensure that aircraft are not used for purposes incompatible with internationally recognised human rights standards.
	Since Report, we have also had the opinion of the Venice Commission, the European commission for Democracy through Law, which was requested by the Committee on Legal Affairs and Human Rights of the Parliamentary Assembly of the Council of Europe. That opinion describes in some detail the general principles of civil aviation relevant to the allegations of rendition. No doubt, that will inform the further work of the Council of Europe. Of course, the UK will work closely with the Council of Europe on its proposed review. As we are here dealing with international law, the House will recognise that any change will be more appropriately made on a multilateral basis. We therefore prefer to wait for the proposals promised by the secretary-general and, if it appears that any changes to current arrangements are needed, to consider them in the appropriate international fora.
	I turn to the question of our ability to implement the new clause. I understand that this is a highly emotional topic. It is very important and I recognise the strength of feeling that enthuses all those who have spoken in this debate. But this is an amendment to this Bill. Therefore, I emphasise that it is important that we consider what the new clause would mean in the Bill in the real world. The simple practicalities of forcing a plane to land make the clause all but symbolic. A typical scenario for a jet aircraft might be that it was in United Kingdom airspace for up to two hours. If intelligence came to light indicating unlawful activity on that aircraft, it is unlikely that the intelligence services would be able to assess the quality of that intelligence for reliability and recommend action in such a short period.
	When the noble Baroness, Lady D'Souza, moved her amendment on Report, she said that an aircraft should be made to land even if it was "slightly suspected" that an unlawful rendition was taking place. As I said then, forcing an aircraft to land in British airspace is an act of such drama and difficulty that we would need a much higher threshold than that. To warrant such a dramatic intervention—to require an aircraft to land under some compulsion of force—would be a very serious act by this or any government. We would be liable to pay compensation if an error had been made and an aircraft had been forced down unjustifiably.
	I reiterate the Government's position on the allegations that have prompted the new clause, just for clarification. The noble Lord, Lord Lamont, who participated in our debate for the first time, also emphasised those allegations, and I shall respond to him. I am somewhat dismissive of the scenario outlined by the noble Lord, Lord Campbell of Alloway. This is not an area in which conjecture will do as the basis for our debate.
	The reality is this. We have made clear to the United States authorities, including in recent months, that, first, we expect them to seek permission to render detainees via UK territory and airspace, including any overseas territories. Secondly, we will grant permission only if we are satisfied that the rendition would accord with UK law and our international obligations. Thirdly—this is a point on which the noble Lord, Lord Lamont, pressed me—we have emphasised to the United States how we, the British Government, understand our obligations under the United Nations convention against torture and the European Convention on Human Rights. In turn, we are clear that the US would not render a detainee through UK territory or airspace, including overseas territories, without our permission.
	I recognise the opportunities that have been taken in this somewhat humble Bill to discuss such a significant matter. The opportunity has been seized by the noble Baroness, Lady D'Souza, and those who supported her, to air an issue about which we are all very concerned. It has disturbed Her Majesty's Government greatly during the past two months and rendered those of us speaking on their behalf just before Christmas in a very difficult position on something about which the Government knew very little at the time and was clearly having to carry out significant research. That is why answers to Parliamentary Questions and Statements have been delayed—not through any attempt at obstruction but simply because the research had to be conducted on an issue on which, it will be recognised, is not part and parcel of the normal operation of government and certainly not part and parcel of the normal operation of the humble Ministry for Transport.
	To conclude, however well intentioned, the clause would serve no practical purpose, as the necessary powers to require an aircraft to land and then to enter and search it to ascertain whether a crime had been committed already exist in our national law. Any changes to international law that may be identified as desirable—I have mentioned that discussions about that continue—would certainly be best dealt with through the appropriate international fora.
	We have had an important debate. I hope it will be recognised that I have responded to the issues that have been raised as fully and clearly as I can, although I have no doubt that many of them go far beyond the responsibilities of the department. I also hope it will be recognised that the new clause would not add to the Bill any powers that we do not already enjoy to deal with extraordinary rendition, which Members on both sides of the House regard as abhorrent.

Baroness D'Souza: My Lords, I thank all noble Lords who have contributed to the debate. I also thank the Minister for a considered reply for the third time.
	Time is short, and I will be very brief. I do not feel that the Minister's answers in any way meet the requirements that I set out in my opening speech on the amendment. There is no question that one can reasonably suspect that extraordinary rendition—or perhaps the non-language of abuse, as I think it should be called—does take place, by virtue of the fact that the American interpretation of the torture convention is undoubtedly different from that of the UK and many other countries, as the examples given by the noble and learned Lord, Lord Archer of Sandwell, and the noble Lord, Lord Lamont of Lerwick, demonstrate. Therefore, assurances from the US are really not worth much if we are signed up to the absolute prohibition of torture, which indeed we are. I therefore feel that we not only have reasonable suspicion, which must be addressed, but that existing domestic laws are not being implemented. The Minister has given repeated assurances about the understanding that has been reached with the United States, but that is by no means formal, so it is very difficult to believe that it will be adhered to at every stage. In view of this uncertainty and the extreme importance of the issue, which undoubtedly comes within the wider remit of the Bill in that it concerns the illegal use of flights, aeroplanes and airports, I seek to test the opinion of the House.

On Question, Whether the said amendment (No. 6) shall be agreed to?
	Their Lordships divided: Contents, 58; Not-Contents, 84.

Resolved in the negative, and amendment disagreed to accordingly.

Lord Davies of Oldham: My Lords, I beg to move that this Bill do now pass.
	Moved, That the Bill do now pass.—(Lord Davies of Oldham.)
	On Question, Bill passed, and returned to the Commons with amendments.

Safeguarding Vulnerable Groups Bill [HL]

Lord Adonis: My Lords, I beg to move that this Bill be now read a second time. Parliament has no more important duty than ensuring that children and vulnerable adults are safeguarded from avoidable harm. It is vital to ensure that individuals with a track record of criminal or otherwise abusive behaviour in respect of those in their care should not be given new positions of trust, whether in schools or in care settings. This Bill seeks to improve the vetting and barring regime to that end. I believe that it will be welcomed in all parts of the House.
	Staying safe is one of the five outcomes in the cross-government Every Child Matters programme, which seeks to ensure that safeguarding becomes everyone's business across the range of children's services. The Bill is part of that programme. Equally, the Bill will significantly improve safeguarding for adults in the most vulnerable situations, particularly in care homes and care services.
	The background to this Bill is only too painfully lodged in our memories. The tragic murders of Holly Wells and Jessica Chapman in Soham in 2002 brought to light serious weaknesses in the systems for protecting children from staff with a record of abuse and criminality. The Government commissioned Sir Michael Bichard to identify reforms to prevent any repetition of those serious failures. We accepted all the recommendations of the Bichard report in 2004, and a broad programme of work was immediately set in train to strengthen the safeguarding of vulnerable persons.
	A key element of that is the IMPACT programme, which is improving the ability of the police service to manage and share operational information. The IMPACT index went live in December 2005 and enables police forces to see which other forces may hold information on particular individuals. Because that information is held on local rather than national systems, it would not previously have been visible outside the force holding the record. This is a first step towards a full information-sharing capability that will allow police to search and retrieve information across all forces. A statutory code of practice on the management of police information came into effect last November. It sets out principles to ensure a nationally consistent approach to the way in which police information is managed.
	In respect of schools, the National College for School Leadership now has in place an online training programme for school governors and head teachers. Since last July, we have made available safer recruitment training materials to the head teachers and one nominated governor of every maintained school, together with two staff from every local authority in England. We will also be making the training package available to two members of staff from each independent school.
	The Bill specifically takes forward Recommendation 19 of the Bichard report. Recommendation 19 called for there to be a single, consistent national registration scheme for those working with children or vulnerable adults, with a single protocol and a single set of arrangements for the inclusion of names on two lists—one for the children's workforce and one for the vulnerable adults workforce—that would be capable of continuous updating and be available to all employers and potential employers, including parents. Careful consideration has been given on how best to implement Recommendation 19. A formal consultation on proposals was started last April. Further consultation on the policy detail was carried out between December last year and this January, in each case on specific proposals, which Sir Michael Bichard himself welcomed.
	On 19 January, my right honourable friend the Secretary of State for Education and Skills set out our further intentions on immediate steps to be taken leading up to this Bill. As an interim regime, we have tightened the existing system in a number of ways. Under regulations that will come into force in May, CRB checks will become mandatory for all newly appointed members of the school workforce. In respect of barring decisions, we will shortly introduce new regulations to ensure that any individual working with children who is convicted or cautioned for sex offences against children will be automatically entered on List 99 and barred from working in schools and other educational settings.
	In respect of the management of List 99, we have appointed a panel of experts, chaired by Sir Roger Singleton, the former head of Barnardo's, to advise the Secretary of State on her functions on the List 99 process. My right honourable friend has also asked Ofsted to conduct a survey of current vetting practices in schools and further education institutions to establish the robustness of current processes. That report will be published shortly. In addition, through the Children Act 2004, we have put in place a new safeguarding duty on a range of organisations. We are bringing better co-ordination to children's services through children's trusts and a joint inspection framework, and we are bringing together the key organisations at local level, including the local authority, health, criminal justice sectors, in local safeguarding children boards, which must be in place nationwide from next month.
	The Bill puts in place long-term reforms to the vetting and barring process, and four key principles underpin it. First, the interests of the child and the vulnerable adult are paramount. Whenever there is a judgment call about the suitability of an individual to work with them, we make it with a view, first and foremost, to safeguarding the welfare of the child or vulnerable adult.
	Secondly, our objective in this reform is to minimise the risk of harm to children and vulnerable adults from people employed to look after them, including volunteers. I stress the word "employed"; the Bill does not intrude into family relationships. There are of course other sources of harm to children and vulnerable adults, often within the family, but other systems are available to address them: for example, care proceedings to protect children from abusive parents and the tougher measures now in place to tackle domestic violence and abuse in relation to older people. Your Lordships have further strengthened protection for children in the amendments inserted by the House into the Children and Adoption Bill to provide for child safety risk assessments in child contact proceedings.
	The third principle underpinning the Bill is that responsibilities for safeguarding in the employment context are shared. The state has an important regulatory role, but in terms of specific decisions made in specific employment situations, employers have a prime duty, and parents and families also have responsibilities of vigilance.
	The fourth principle is that, subject to the paramount interests of the child and the vulnerable adult, decisions by the state to bar individuals from employment should be proportionate. The four principles that I have set out are reflected throughout the Bill and will be reflected in the guidance and regulations on its implementation that will follow.
	I have referred to the two lists. The first, to cover the children's workforce, integrates List 99 and the Protection of Children Act list; the second, covering those working with vulnerable adults, replaces the protection of vulnerable adults list. In respect of the maintenance of the two lists, responsibility, as set out in Clauses 1 and 2, will lie with the new Independent Barring Board, which will make all discretionary decisions on barring under the new regime. Schedule 1 covers the membership, operating powers and accountability of the IBB. The Government have today published a consultation document seeking views on the types of expertise that the IBB will require among its members and staff. I have sent a copy of the document to all noble Lords participating in the debate, and I would welcome views before we go into Committee.
	The IBB will work closely with the Criminal Records Bureau, which will perform the administrative functions to enable the scheme to operate. The IBB will be required to issue annual reports and to keep accounts that will be audited by the National Audit Office and laid before Parliament.
	The new scheme will offer three levels of protection, as set out in Clauses 5 to 20 and Schedule 3. The first level is where the bar applies and there is a requirement on employers to check barred status. It covers work in key settings such as schools or care homes, work that involves frequent and specified close contact with vulnerable groups in all adult health or social care or any children's settings, and key positions of authority. This is defined as "regulated activity" in the Bill and covers, for example, teachers and all other employees working in a school who have frequent contact with children. In those settings, barred people will not be allowed to work, and employers will be required to check whether recruits are barred.
	The second level of protection will involve a requirement to check barred status but with the discretion to employ, with appropriate safeguards put in place if necessary, should information of concern be secured by the employer such as, for example, from a full CRB disclosure or from a reference. The second level covers support work in general health, further education or social care settings. The Bill describes these more ancillary fields of employment as "controlled activity".
	The third level of protection is where there is the ability to check barred status but no requirement to do so. It covers work that involves specified close contact with children and vulnerable adults but where the employer is an individual making private family arrangements such as for nannies and care workers in the home. It also covers individuals working closely with vulnerable adults in a range of settings, including leisure facilities and supported housing. For the first time, parents will be able to check directly whether domestic employees are barred.
	Affirmative regulations made under paragraphs 1, 2, 6 and 7 of Schedule 2 will provide for convictions and cautions for the most serious offences committed by adults against children or vulnerable adults to result in an immediate automatic bar. Offences resulting in an immediate automatic bar without a right to make representations will be those where there can be no doubt that an offender would pose a manifest risk of harm to children if allowed to work with them. We are still considering precisely which offences would fall into that category. For the children's barred list, they will very likely include rape of a child under 13, sexual assault of a child under 13 and causing or inciting a child under 13 to engage in sexual activity. All of those are offences specified in the Sexual Offences Act 2003. For adults, they will likely include offences under the 2003 Act that are committed against an adult with a mental disorder.
	There will also be offences leading to an automatic bar but with a right of representation. Examples are likely to include offences relating to prostitution, pornography or trafficking. In those cases, the individual will have the opportunity to make representations to the IBB, where the individual claims that they do not present a risk to children or to vulnerable adults. The IBB in such cases will have discretion over whether to apply the bar. That will ensure that, if individuals have convictions or cautions for specified offences against vulnerable groups, a bar will cease to be imposed only if the IBB is absolutely convinced that on the evidence they do not pose a risk of harm to children or other vulnerable groups. I need hardly add that, in respect of those offences, there must necessarily be a very high threshold to pass.
	Where information other than a conviction or caution for a prescribed offence suggests that an individual's behaviour was inappropriate, that the individual endangered a vulnerable person or that they present a risk, the facts will be carefully considered by the Independent Barring Board. A decision will be made following any representations made by the individual. The Independent Barring Board will provide individuals with all the information that was considered as part of a barring decision, ensuring that the process is open and transparent. That will also guard against cases of mistaken identity.
	In addition to police information, the IBB will receive information from employers, from professional and regulatory bodies and from local authorities—for example, where a member of staff is dismissed in circumstances that indicate a risk of harm to children or to vulnerable adults. The IBB will exchange information with authorities such as the General Medical Council and the General Teaching Council. Monitoring those sources will enable the IBB to alert the relevant employer if information is received that requires the bar to be applied. That is a significant strengthening of the present scheme.
	In all cases of barring, there will be a right to apply for a review of the barring decision, following a prescribed period set out in Schedule 2(14). It will enable the bar to be lifted if there is no evidence of an ongoing risk after a defined period. The Bill provides for appeals on points of law to the Care Standards Tribunal, with a further right of appeal to the Court of Appeal.
	Let me stress that Ministers will not be engaged in discretionary decisions by the Independent Barring Board in any respect whatever. That will be a fundamental change from the existing system and one wholly desirable and in the public interest.
	We intend to publish comprehensive information about the barring process and guidance for employers on their responsibilities under the new scheme. We will also shortly be reissuing Working Together to Safeguard Children, which includes guidance about how to handle allegations across the children's workforce.
	A further important issue is the regulation of employees who come to this country from overseas. The Bill only partially covers employees from overseas. When such individuals have an employment record in this country, their UK employment will be covered by the IBB and CRB arrangements that I have set out. In respect of their overseas employment and any information available to the public authorities in their country of origin, my department has issued guidance, Child Protection: Preventing Unsuitable People from Working with Children in the Education Service. The guidance details the range of background checks that employers need to carry out. The guidance advises on the need to carry out checks as for UK-based teachers—for example, with references, qualifications, identity, as well as any appropriate police checks via embassies or local police forces.
	Although the CRB has access only to information held on specified UK data sources, the CRB and the Home Office are working with other countries on the sharing of criminal record information for employment vetting purposes in order to ensure the widest possible capture of relevant information for use by the vetting and barring scheme and by employers. My department is exploring with the CRB, the Recruitment and Employment Confederation and other stakeholders possible ways in which we could tighten further the arrangements for the vetting and recruitment of overseas staff. I will be able to update your Lordships at later stages of the Bill's progress.
	Safeguarding children and vulnerable adults is a serious responsibility and is a shared responsibility. The Bill provides for new criminal offences in Clauses 7 to 13 to ensure compliance with the scheme. A barred person will be committing an offence if they work or seek to work frequently and closely with the relevant groups in any setting. An employer will be committing an offence if they knowingly employ someone in a role where the bar applies, if they fail to make checks where checks are required or they continue to employ an individual who is not subject to monitoring. Those criminal offences will be backed by new sanctions, including fines or up to five years in prison.
	I hope that I have set out clearly the essential features of the new vetting and barring scheme. The scheme fully implements Recommendation 19 of the Bichard report. It takes forward the strengthening of safeguarding announced by the Secretary of State on 19 January. It ensures that safeguarding is the top priority. It will, I believe, give the public confidence that our system for vetting and barring unsuitable adults is as robust as the public would expect. On that basis, I commend the Bill to the House.
	Moved, That the Bill be now read a second time.—(Lord Adonis.)

Baroness Buscombe: My Lords, I thank the Minister for introducing the Bill to your Lordships' House. In principle, we on the Conservative Benches welcome the Bill. The safeguarding of vulnerable groups is an issue which must receive a constructive, cross-party approach. The Bichard report exposed an inadequate system of protection. It is positive to see that the Government are now legislating to rectify that. That said, with our support of the general objectives of the Bill, we have a number of questions and concerns about its implementation.
	We welcome the establishment of the Independent Barring Board. Members of these barring boards must have the requisite skills to form objective and sensible conclusions. Under Schedule 1 to the Bill, the chairman and members,
	"must appear to the Secretary of State to have knowledge or experience of any aspect of child protection or the protection of vulnerable adults".
	Surely members of these boards must demonstrate more than just appearing to have knowledge or experience. They will be expected to make some difficult decisions. There is a real case for manning these boards with professionals seconded from various authorities such as the police and social services together with committed, proven and competent laymen.
	One significant area of concern that needs to be addressed is why there is a need for two separate lists, rather than one central point of reference. Should an individual who is barred from working with vulnerable adults reasonably be permitted to work with children and vice versa? I certainly would not feel comfortable knowing that an individual barred from working with my children was providing care to my parents.
	Research by the Ann Craft Trust has shown that one in five people who sexually abused older people had also sexually abused children. Abuse is about power, not age, and those people who abuse vulnerable adults will potentially abuse children, and vice versa.
	Ultimately, there is a duty of care that must be provided to all vulnerable groups. It is telling that the Commissioner for Older People in Wales has been established along the same or similar lines and principles as the Children's Commissioner.
	We accept that there may be circumstances where individuals need only be placed on one of the lists. However, it would be irresponsible for the Independent Barring Board not to be duty bound to consider individuals who come before it for both lists. If there is a possibility that an individual poses a threat to the vulnerable, there is a real case that the IBB must be obliged to consider them for both lists.
	Will the lists be accessible over the internet? Who can access the lists? They must be secure, in which case what information will be accessible to employers? Will specific details relating to individuals being barred be available to those using the internet facility?
	If the Criminal Records Bureau is to provide an administrative function, does it have the necessary resources to cope? We are aware that the computer system, Information Management, Prioritisation, Analysis, Co-ordination and Tasking (IMPACT), is not to be fully operational until 2010. That is certainly a worrying factor. For example, we have concerns about the proper vetting of agency staff, the self-employed and volunteers. Domestic employers must have sound guidelines. For example, within what actual proximity to children and vulnerable groups will barred individuals be permitted to come? Administrative and clerical staff who work in organisations that may deal with vulnerable groups on the fringe are certainly a cause for concern. The Bill contains sanctions against employers, with fines and a potential custodial sentence if they hire a barred individual. Given the necessary increased obligations placed on employers, what will responsible employer analysis of individuals involve?
	Turning to the provisions in Schedule 2, Part 3 on "prescribed criteria", we have genuine concerns about exactly what those criteria will cover. For example, under paragraph 19 of Schedule 2:
	"Provision may be made for the criteria to apply differently in different circumstances".
	Is that rather loose phraseology intentional? Surely, we should seek to be as unambiguous as humanly possible and to provide the IBB—which must have solid guidelines if these lists are to have complete integrity—with ultimate clarity.
	It is welcome that those acquitted of an offence may still be on a list if the board deems them a threat. However, that must be subject to checks and balances. An individual must have a right of appeal to make his case to the IBB on a point of law. As for automatic inclusion on lists, we are aware that Liberty believes that the absolute nature of such a bar may breach the European Convention on Human Rights. Is that the case? The Explanatory Notes certainly allude to it. Furthermore, will those individuals subject to such automatic inclusion be permitted to appeal on a point of law? We will certainly want to monitor that area as the Bill progresses.
	Notwithstanding the Government's possible intention to ensure "joined-up government", implementing this Bill will require more than co-operation in Whitehall. There must be co-operation and consultation on many levels. The IBB must look at evidence from a number of sources—including the courts, local authorities and the police—to build up a picture of an individual and whether they are a threat. Furthermore, in terms of a joined-up approach, it is welcome that competent bodies may make "findings of fact". Co-operation between the IBB and bodies such as the GMC, the General Teaching Council and General Social Care Council—among others that the Bill mentions—will be significant in monitoring questionable behaviour.
	Will the Minister indicate how foreign nationals are to be monitored or barred? I listened with care to what the Minister said about arrangements for vetting and recruiting overseas staff. However, while cross-European co-operation is all very well, our information systems in the UK are not up to scratch. Liaison with foreign governments will certainly challenge that system. It is worth noting that the Home Office is unaware of the number of illegal immigrants currently living and working in the United Kingdom, so there will be no records available for such persons. Furthermore, in terms of devolved government, those individuals barred or monitored in Scotland or Northern Ireland must be made known to the relevant organisations in England and Wales. Differing information management systems must not prevent that process.
	In conclusion, as citizens we have a duty of care to protect all vulnerable members of our society, whether in nursery school or in a care home for the elderly. Abuse of the vulnerable is an abuse of power and trust. It has taken some horrific cases to expose weaknesses in the system. We support the objectives of the Bill. As an improved system of protection and vetting develops, we want to ensure that it is implemented as successfully and speedily as possible—with the necessary checks and balances in place. Furthermore, we wish to see such a system having the integrity and efficiency required genuinely to ensure that future abuse cannot occur. As such, we shall be seeking to amend some parts of the Bill to offer greater clarity.

Baroness Walmsley: My Lords, I, too, very much welcome the Bill, and I believe that the framework that it proposes will make children and vulnerable adults safer than they were before. If I express any concerns or propose any changes, they will be ones that will improve the Bill without interfering with the powers of the Independent Barring Board to set up and maintain an effective system to protect children; indeed, they will strengthen it. That is my main objective, in common with the Minister and other noble Lords.
	Safeguarding children requires much more than a barring list. It requires a whole child protection mindset, a culture of vigilance, a clear understanding of roles and expectations and appropriate training for all those who need it. I have tabled amendments to the Childcare Bill about that, but that Bill only covers very young children, whereas it is often older children on whom unscrupulous people prey.
	There is no absolute right to work with children or vulnerable people. The levels of vetting that can be expected for those wishing to do so should be rigorous and far beyond those relevant to other areas of employment. However, my main problem with the Bill is its lack of clarity, and we will need to work on the detail in Committee.
	There are also matters of principle. I, too, am particularly worried about the scope in Schedule 2(1) for automatic inclusion of people on the barred list without the right to representation. Details of the offences that will lead to that automatic inclusion will be in regulations that are not yet published. That makes proper parliamentary scrutiny impossible. I will therefore be proposing at a later stage a way of giving Parliament an opportunity to debate and amend the regulations. Even the affirmative resolution procedure is a blunt tool for legislative scrutiny. Parliamentarians may agree with some but not all of a list of prescribed offences, but they will be unable to amend it. Besides, this shows the Government's lack of trust in the IBB's ability to hear all the evidence and still avoid allowing unsuitable people to work with children. It is also in danger of contravening Article 6.1 of the European Convention on Human Rights. I would be interested to know what the Joint Committee on Human Rights thinks of this part of the Bill, since it is clear that case law has established that any procedures where civil rights are determined without ever hearing from the parties would be incompatible with the convention. I am not suggesting that people in this category are suitable to work with children, but we should have due process in all cases.
	In Schedule 2(3) on "Behaviour", there is also lack of clarity in the phrase "relevant conduct", which is not defined. Schedule 2(4) states that,
	"conduct of a sexual nature involving a child—
	would be defined as "relevant conduct" if—
	"it appears to IBB that the conduct is inappropriate".
	That leaves it unclear what and how conduct of a sexual nature involving a child or children would ever be acceptable. Indeed, I wonder whether we are back to the arguments that we had on the Sexual Offences Act 2003 about agony aunts and their sexual advice to young people. That Act throws a very wide net of criminality so that, for example, all sexual contact between under 16s is technically illegal. That is another reason why blanket bans often lead to unfair treatment.
	I raised with the Minister during the Second Reading of the Childcare Bill last week the issue of whether a person under 18 could be included on the new barred lists. There are a number of services, including those run by Barnardo's and the NSPCC, that help those children who display sexually harmful behaviour. In the past, it has been assumed that such children were at high risk of reoffending, but if they have received expert, targeted intervention that is no longer true. That is why such children are more appropriately dealt with by the welfare system than by the criminal justice system. However, until such time as that happens, it would be quite wrong for their troubled childhood behaviour to automatically lead to their being put on a barred list, with the adverse effect that might have on their future career.
	Today, I have had a reply from the Minister saying, in effect, that the list of offences is that in the Day Care and Childminding (Disqualification) (England) Regulations 2005—SI 2005/2296. He also says that the protection for very young offenders would be the fact that Ofsted will continue to be able to waiver disqualification in certain circumstances; I presume, for example, where the offender was very young at the time and does not present a current risk to children. However, I would like to explore the matter with the Minister, since I feel that it should be clear in the Bill, or people will not know where they are. I also think that there may be situations covered by the Bill in which Ofsted has no jurisdiction, so I do not see this as a full reassurance.
	Paragraph 5 of Schedule 2 refers to the possibility of future risk of harm to a child. It is unclear how that will be assessed, but I assume it will be on the basis of past behaviour, in which case I wonder why the person in question does not fall into the category of paragraph 3, which relates to behaviour. It is therefore hard for me to see why we need paragraph 4 at all. To bar someone from working with children on the basis of what they might do takes us into a difficult area and will inevitably raise concerns about inappropriate barrings.
	We need a better definition of all the thresholds at which barring decisions will be made and the factors that lead to them. It is crucial that they are clear. They must be set at the right level and we need to know what those levels are. There is a need for balance and proportionality. It is important to avoid mistakes, to protect the innocent from ill-founded allegations, to respect privacy and protect young people who make minor misdemeanours from being blighted in later life.
	One of the most difficult areas the IBB will have to consider is the "soft" area of evidence: intelligence, behaviour and risk of harm. How will the IBB assess what is known as non-conviction data? Indeed, there are other factors it might consider, such as matters arising from private law proceedings where there is evidence that children have been harmed; matters arising from inappropriate behaviour with vulnerable adults; matters arising from medical or social care intervention; and offences under a professional code of practice. How will the IBB deal with these, or is it even empowered to do so?
	In relation to "soft evidence" the police will need clear guidance as to what level of data they should retain and submit to the IBB and this should be consistent throughout the country. One of the problems emerged during the Bichard inquiry. It seems that the guidance issued by ACPO on retaining intelligence relating to non-conviction information made it difficult for police officers to determine whether to retain or delete information. Evidence submitted by the Police Federation to the inquiry stated that where there had been any doubt about whether soft information should be retained, officers erred on the side of caution and deleted it. However, following the Soham murders it is easy to see how the pendulum could swing too far the other way so that any allegation made about an individual could be retained. Information weeding is not a precise science, so I hope the Minister can reassure us, during his response, that the code of practice to which he referred in his opening speech is working fairly and effectively.
	I welcome the duty in Clause 30 and Schedule 2(2) for local authorities to refer appropriate people to the IBB if they fall within certain categories, are working with children or vulnerable adults and the harm test is satisfied. But harm is not defined in the Bill. I suggest we need a definition here and I will table an amendment saying that the threshold of significant harm in Section 31(9) and (10) of the Children Act 1989 is the one that should apply. If we do not have a clear definition, social services could get tied up in a lot of inappropriate referrals and we do not want that since it could lead to costly litigation. There is also a need to be clear about how frequently the information will be updated and how often rechecking will take place.
	One of the stated objectives of the Bill is tightening up and simplifying the system, but there are still to be two barring lists. While this is better than nine, we need to know about the relationship between the two. How do they interact? Given the evidence that abuse of children and vulnerable adults is a power crime and that the two have much in common, it is essential for consideration to be given to whether a person should be put on both lists if he qualifies to be put on one of them. I will be tabling an amendment to put a duty on the IBB to give consideration to this matter in every case.
	Fortunately, most of the people who do wonderful and worthwhile work with children and young people need never fall foul of any barring list. But it is worth considering the availability of some sort of accreditation for people who fall outside the regulated or controlled work categories, to enable them to show positively that they are the sort of people who are suitable to work with children if required. I have in mind something like the kitemark in the Protection of Children and Vulnerable Adults (Northern Ireland) Order 2003.
	Speaking of the regulated and controlled categories of work, I, too, would like to ask why we need two categories at all. Surely everyone who works with children at any time would have an opportunity to abuse and should therefore be checked as to whether they appear on any barred list—and the simpler the process, the better.
	The IBB will have a very important job to do and its membership should include people with a wide spectrum of experience as well as knowledge of child protection. I refer to employment law, criminal law and the management of sex offenders, and I include those involved with probation, the police and multi-agency public protection arrangements, as well as legally qualified people. Can the Minister reassure us about that? He can be assured that we will respond to the document that we received from him today about it.
	Can the Minister also tell us how the board will interact with the CRB and the Home Office? Will it be entirely independent or will it be linked in some way? To whom will it report? That is not clear in the Bill. I presume that the Secretary of State referred to is the Secretary of State for Education and Skills, but perhaps the Minister could confirm that.
	This Bill is still more complex than I think it needs to be, so there is a need for a full communication process, since there will be huge consequences for people working in previously unregulated posts. This could particularly affect the voluntary and community sectors. People need to know what is meant by the two categories of "controlled" and "regulated" activity. They need to know where the dividing line is and what "frequently" and "occasionally" mean in the Bill. If people are not sure, they will protect their backs and carry out checks anyway, particularly in view of the criminal penalties for mistakes of omission. We do not want people checking inappropriately, because they can have their right to check taken away if they do so. Also, that would clog up the system.
	Just sending out information packs will not do. We need face-to-face briefings, plus a website, a helpline and information about the timescales for, as well as the details of, implementation. It is particularly important to have easily accessible information available to individual parents who employ someone to look after or teach their child. They need to know that they have a new right to check and they need to know how to go about it. Perhaps the Minister could also tell us what individual checks will cost.
	Finally, I will say a word about overseas workers. This is a very difficult area for employers, who have to rely on what they can get from abroad. It would be quite wrong to prevent someone working with children or vulnerable adults just because they came from a country that did not have the same rigorous system as we are currently trying to devise. In fact, care homes for elderly people rely on many workers from abroad. Therefore, I was glad to hear what the Minister said in his opening remarks about the Home Office's work with other countries.
	I wonder whether the Government have considered a probationary period for overseas staff, with an extra level of supervision until the authorities in this country have been satisfied. That would not be perfect, but it would be better than what we have now. Alternatively, there could be a mandatory duty for an employer to prove that they have taken steps to obtain criminal records or other relevant information from abroad if their employee is from there, although I do not underestimate the difficulty for employers of having to do that.
	I am excited about the possibility of a better system to protect the vulnerable in our society. I look forward to having the opportunity to work with the Minister and your Lordships to improve this basically sound Bill to ensure that its fine objectives are achieved without anyone being unfairly treated.

The Lord Bishop of Peterborough: My Lords, I, too, welcome the Bill. As the Minister said, we are all aware of the tragic circumstances which led to the Bichard inquiry, and to the legislation to deal with the loopholes in the present system. Like every bishop, I have sought enhanced disclosures for hundreds of clergy and volunteers who work in our schools and churches. I am well aware of some of the loopholes in the system.
	I know that I speak for all Church and religious leaders in saying that the safety of children and vulnerable adults in our care must be paramount. The education division of the Church of England and the National Society for Promoting Religious Education strongly support the Bill's proposals to minimise the risk of children and others suffering harm at the hands of those who work with them. Through its schools, which educate nearly 1 million children and young people, the Church of England has responsibility for well over 4,000—indeed, nearly 5,000—institutions in which "regulated activity", as the Bill defines it, takes place. Because of our existing commitment to ensure that children remain safe from harm, dioceses and diocesan boards of education have well-established child protection policies. We recognise, however, the need to strengthen the provisions and to make mandatory provision to vet all who work with children.
	We have welcomed involvement in the preparation of this Bill through the consultative group on child protection, the education sub-group of the Criminal Records Bureau and the steering group, which has developed online training material for head teachers and governors for safer recruitment and selection of school staff. In addition, the Board of Education responded to the consultation on Making Safeguarding Everybody's Business: A Post-Bichard Vetting Scheme in July 2005.
	In addition to their schools and other institutions, the Churches and faith communities engage with children and young people on a voluntary basis. In recruiting volunteers as well as employees, we have sought to implement best practice in establishing child protection policies, which cover all involved in working with children and other vulnerable people. But we are aware that the process of vetting volunteers is less easy to regulate, and it remains a matter of concern in respect of this Bill that the concentration on regulated activity in the list of establishments in Schedule 3 may not fully cover the many organisations in the voluntary sector where children need equal protection. I would appreciate clarification on the Minister's assertion in his opening remarks that volunteers are fully covered in the legislation.
	There are always limitations on any scheme, however comprehensive it attempts to be. Bitter experience has shown that even enhanced disclosure will not identify every person at risk of harming children, but only those involved in incidents that have been notified to the police or other authorities. Our confidence in the proposed board and a better system must not replace the need for sound and rigorous techniques of recruitment and interview, alongside these proposals. Sadly, there remain some people without moral scruple, who can find ways of having access to children and young people, however thorough the systems are.
	No system can be presented as foolproof or as removing the onus on every citizen to develop and uphold a sense of personal and moral responsibility for children and vulnerable adults. The existence of a barred list will not usurp that responsibility on all of us.
	Conversely, if the public, and employers in particular, are to have confidence in the list, decisions about it must be made transparently and by suitably qualified people, as Schedule 1 proposes. It must be demonstrable that it is an improvement on the present system. I therefore welcome the consultation to which the Minister referred in introducing the Bill to the House.
	The vast majority of our children and vulnerable adults is educated and cared for in institutions which treat them with dignity and care—a dignity and care which reflects their uniqueness as human beings whom the Churches regard as being made in God's image. I believe, therefore, that we should welcome the Bill and trust that effective procedures to maintain that record will lessen the culture of suspicion which too often undermines our confidence in each other and devalues the generous goodwill which leads our teachers and carers, both voluntary and employed, to give us their skills for the benefit and well-being of our children. Yes, we need a culture of vigilance but also a recognition that there is a difference between a culture of vigilance and the culture of suspicion which undermines the necessary trust upon which the care of children and vulnerable adults should be based.
	I welcome the Bill and trust that through its proposals and improved vetting and barring procedures it will achieve the purpose of minimising the risk to our children and vulnerable adults. I look forward to working with others in the House in guiding it through its stages and improving it where necessary. Others have mentioned improvements which need attention and I shall not repeat them. I give the Bill an overall welcome. I congratulate the Minister on introducing it to us.

Baroness Thornton: My Lords, I am delighted that the Safeguarding Vulnerable Groups Bill has been brought before your Lordships' House and introduced so helpfully by the Minister.
	I have spoken about vetting, barring and lists at least two or three times in the past eight years during the passage of various Bills concerning children's safety. The Government are to be congratulated on the fact that the Bill is the product of a great deal of consultation. I welcome the fact that they have already embarked on consultation on the independent barring panel. The Bill before us has benefited from the amount of discussion that has taken place.
	The children's organisations with which I have an association, NCH and others, have broadly welcomed the Bill. Indeed, many have been clamouring for some time for coherence and clarity in this area. I am confident that with the customary thoughtfulness of the Minister and the expertise that resides in your Lordships' House we shall clarify that which needs clarification and improve the Bill before we pass it to another place.
	I broadly agree with the concerns raised by the NSPCC and Barnardo's in their helpful notes on the need for greater clarification about such matters as which offences would lead to automatic inclusion on the barred list; whether a person under the age of 18 can be included on the barred list; and how the two lists might work—an issue raised by several noble Lords. If someone is included on the vulnerable adults list, does that mean they are not included on the children's list? I am sure we shall have many discussions on this matter.
	I also agree with the concern of the Local Government Association about the funding, establishment and maintenance of the list. I recall a discussion in this House some years ago about the bringing together of all the different lists and about costs being a major barrier as well as complexity. I do not believe that this is a no-cost exercise.
	The major point I wish to raise relates to paragraphs 2(1)(e) and 2(4) of Schedule 3 to the Bill at page 42. The intention of the regulations seems to be to make it compulsory for people to be made the subject of criminal and other checks if they are engaged in moderating online activities which are aimed at children or are likely to be used by children.
	I understand that at present such checks are optional. First, I am not sure why in this context the protection should be extended only to children and why it does not extend to all vulnerable groups encompassed by the Bill. Secondly, while I entirely understand the sentiments which lie behind the apparent attempt to stiffen the laws in this area, I should like to query, or obtain clarification on, its intended scope. I am not expressing opposition to the sentiment which has led to these proposals, but I want to explore why they have been framed in the way they have, and what they might do.
	As noble Lords will be aware, online chat rooms, discussion forums, bulletin boards, blogging and social networking are hugely popular with children and young people. They give them an excellent opportunity to develop their writing skills, to express themselves and to form relationships with people all over the world. I take some comfort that my own daughter will use the lucidity that her blogging and other activities express, and hope that she will transfer those with positive effect to her A-levels.
	However, we are all too familiar with some of the tragic consequences which can befall the child if, in these sorts of virtual worlds, they have the terrible misfortune to encounter a sexual predator—typically an adult. Adult sexual predators are attracted to these environments precisely because they know that children go there in large numbers. They are looking for photographs or information, or both, which would render a child vulnerable to their manipulative skills. Elsewhere, in shorthand, this is known as "grooming". Some noble Lords will recall the attention we gave to this issue during the passage of the Sexual Offences Bill.
	In the main, sexual predators who have taken advantage of children in these types of virtual worlds have been other users rather than moderators, who have been charged with keeping the environment safe. However, there have certainly been some cases of that type. In the UK, most of the larger online discussion forums and chat areas employ professional moderation companies, where all the moderators have been made the subject of CRB checks. I confess that I am not sure whether the checks are standard ones or enhanced but, clearly, they ought to be enhanced. The BBC, Vodafone and many other household-name companies absolutely insist on moderation for their interactive areas. They do not doubt its value or importance. They ensure, for example, that a child does not publish to the world details of where they live, or their home or mobile phone numbers, and that they do not disclose intimate details about themselves or their family life. Neither would they allow compromising or illegal images of the child to be posted on the site.
	However, while the BBC, Vodafone and others insist on professional moderation of their services—on which we should congratulate them—many such sites rely on volunteers to do some or all of the moderation. The site itself may be run as part of a straightforwardly commercial venture. They may be a small number of paid or professional moderators, but many—perhaps all—might be volunteers. What effect would this Bill have on them?
	Some of these sites are, in effect, global. Some of the moderators, whether professional or volunteers, might be based in the UK, whereas others might be overseas. The company providing the service might be British or overseas. What happens in these mixed environments? I understand from reading Clause 6 that the Bill is not intended to catch private arrangements that individuals might make between themselves, but it would be hard to describe some of the global sites which claim membership of millions—or some of the UK sites with tens of thousands of members—as falling within that category. Yet those are precisely the sorts of numbers that some of these sites claim to have in membership. What level or type of consultation has there been around these provisions with the internet industry, companies that provide moderation services and their users?
	In this country, we have, by and large, a successful self-regulatory environment, where child safety issues are discussed and handled by a combination of the internet industry, children's organisations, the police and the Government—led by my honourable friend, Paul Goggins—all working together. So, for example, when in the other place my honourable friend Ms Judy Mallaber raised the downloading of child pornography, the Minister said:
	"The UK internet industry and the Internet Watch Foundation continue to lead the world in limiting access to illegal images. In April, this work will be further strengthened by the establishment of the new Child Exploitation and Online Protection Centre".
	He went on to say:
	"Eighteen months ago, no sites were blocked because the technology did not exist. BT has introduced the technology and now 80 per cent. of internet service providers use it. The question is how we achieve the 100 per cent. . . . I engage in regular discussions with the industry and I am determined that we will hit that 100 per cent. . . . through the voluntary route".—[Official Report, Commons, 13/2/06; col. 1130.]
	I would imagine that, under these circumstances of co-operation, there has been some discussion with all the interested parties. I raise this point, because I am aware that concerns have been expressed by some members of the Home Secretary's internet task force about compulsory checks and the precise scope of rules of this kind, particularly with regard to blogging and social networking.
	To conclude, the worry is that these measures might lead many sites to close down and young people would therefore lose the opportunity to participate in potentially creative and useful sites. The Bill proposes a directly interventionist stance. While I am certainly not opposed to that—indeed, I have spoken about these issues many times in your Lordships' House—I am surprised that the Government appear to feel that self-regulation has failed in this instance. I do not think we are quite at that point, and I would have thought that self-regulation ought to have been given the opportunity to work here, as it has done in other areas. Perhaps the Secretary of State might consider taking these powers as reserve powers, to be implemented only if a need were to arise. I hope that we can discuss this issue in the course of this excellent Bill's passage through your Lordships' House, and I look forward to working with colleagues on it.

Lord Rix: My Lords, I must first declare an interest as president of the Royal Mencap Society and as a father and a grandfather. Those are three roles that have allowed me to spend a great deal of time with some of the people this Bill is intended to protect; namely children and adults with a learning disability. I welcome the Bill as an important step towards increasing the protection they, and other vulnerable people, need, but I have a number of concerns too. I hope that the Minister will be able to allay them as this debate continues, and as the legislation makes its way through the House.
	We all know that people with a learning disability—children and adults—are among the most vulnerable in our society. We all know that people with a learning disability are at much greater risk of sexual abuse and assault than the general population. The incidence of abuse among people with disabilities is four times higher than it is among the non-disabled population and, of those, people with a learning disability are at the greatest risk.
	Many cases of abuse occur in places that are beyond the scope of government regulation: in the home, or by people known to the victim who are not employed in a caring role. But that is no reason not to take steps, where we can, to make sure that known abusers cannot work in places where they have access to vulnerable people. Research suggests that at least 1,400 adults with a learning disability are likely to be reported as victims of sexual abuse each year, most of them, but not all of them, women. A recent report by Action on Elder Abuse found that of a total of 639 abuse cases in nine English local authority areas, 210—around one-third—were against people with a learning disability.
	There are clear patterns to such abuse. Most of the people abused have moderate to severe learning disabilities, as well as additional physical disabilities. Abusers are predominantly male, and known to the victim. Many of them are in positions of trust, power or authority, and take advantage of that in order to carry out their abuse. They also, of course, take advantage of the fact that people with both learning and physical disabilities may find it difficult to resist, difficult to communicate and report the abuse, and difficult to be taken seriously.
	While physical and sexual abuse are what most people think about when considering protection from abuse, we should not forget that abuse by neglect can also have very serious consequences. Harm is not always inflicted deliberately. But when staff in a care home for severely disabled people run a bath without checking the temperature, causing severe scalding when the disabled person is lowered in, that is abuse. When an epileptic man is left unattended in his bath, has a fit and drowns, that is abuse. When inadequately trained agency staff fail to follow proper manual handling procedures, and leave a girl with profound and multiple learning disabilities covered in bruises, that is abuse. When people who find it difficult to drink unaided suffer dehydration because care home staff do not feed them, or when people who cannot turn over in bed get pressure sores because hospital staff do not move them, they are suffering as a result of the actions of others and they are being abused just as much as a patient who is assaulted by a nurse.
	Neglect of vulnerable people in care settings denies choices to families. Mencap's report into the support needs of families caring for children and adults with profound and multiple learning disabilities, No Ordinary Life, found family after family who knew that their children would one day have to be moved away from home, but whose experience of using respite care services had given them no confidence that they would be well provided for. One parent said of her daughter:
	"I care for her by choice rather than abandoning her to the mercy of inadequate service systems".
	Until abuse by neglect, as well as deliberate abuse, is stamped out, vulnerable people will not be properly protected.
	I hope that the Minister will be able to reassure me that the barred lists will contain people who have caused harm to vulnerable people by neglect, or whose behaviour has led to a risk of harm as opposed to actual harm, and not just those who have inflicted pain on purpose. Perhaps such reassurance could be provided by placing a definition of "harm" in the Bill.
	Another of my concerns with the Bill—and here I echo the noble Baroness, Lady Buscombe—is its proposal to set up two separate lists, one for children and one for vulnerable adults. I fail to see why someone who harms vulnerable adults should be thought safe to work with children, or vice versa. There is no obvious reason to think that a person who fails to use proper manual handling procedures on a severely disabled child would take more care if they were moving a severely disabled adult. And when it comes to deliberate abuse, the same applies. Many crimes of abuse, such as physical or sexual assault, are crimes of power. The age of the person over whom they have that power simply does not matter; their powerlessness does. Research by the Ann Craft Trust, as we have heard, has shown that one in five people who sexually abused older people had also sexually abused children.
	Having echoed the noble Baroness, Lady Buscombe, I now follow in the formidable footsteps of the noble Baronesses, Lady Walmsley and Lady Thornton. If there are good reasons why we need two lists instead of one, then at the very least the default assumption should be that a barred person should be placed on both lists unless there is a very good reason why they should be on only one.
	The different rules governing the two lists are also a cause for concern. Many disabled adults, including adults with profound and multiple learning disabilities, are more vulnerable than most non-disabled children. And yet there are more restrictions around working with children—all children—than there are around working with adults, even the most vulnerable adults. The bar will apply to all posts in schools and in other services for children, even for posts which do not require day-to-day contact with children. But the adult list, while it covers all posts in registered care homes for adults, otherwise applies only to people whose job brings them into close contact with vulnerable adults.
	If it is not safe for a person on a barred list to work as a school receptionist, why is it safe for him to work as a receptionist for a day centre used by disabled people? There are many people who, while they do not regularly work directly with vulnerable adults, could on occasion have unsupervised contact with them—administrative staff, caretakers, or cleaners, for example. Is it really appropriate for identified abusers to hold these positions? If it is appropriate, can the Minister explain why he considers it inappropriate for them to work in equivalent positions in schools?
	My final concern is about the danger of creating a two-tier workforce in social care, with different levels of registration. The introduction of direct payments for the purchase of care and other services is a welcome government initiative which promises to make a real positive impact on the independence of people with a learning disability and other disabled people. It enables vulnerable people to exercise real choice and control over their own lives rather than being prescribed particular services which may not meet their needs. But it is vital that the same safeguards are in place around services provided through direct payments as around other services.
	At present under the Bill, the recipients of direct payments are not classified as regulated activity providers, which means that they do not have to check prospective employees against the list. Why should the employees of direct payment services be an unregulated workforce? Although it is important to ensure that it is as straightforward as possible for people to use the direct payment system, it is even more important to ensure that people on the adult barred list, who will not be able to find employment in most settings where they may have contact with vulnerable adults, do not gravitate to working for direct payment services instead, finding employment directly with vulnerable people who know absolutely nothing about their background. I am especially concerned about that because of the number of direct payment recipients who have a learning disability. It is vital that safeguards are in place to ensure that they are not exploited by abusers who, because of the regulations imposed across the rest of the care sector, cannot find work with vulnerable people elsewhere.
	Many people who use direct payment services, including people with a learning disability, have limited capacity. In some cases, a person who lacks capacity can receive direct payments through a trustee account, with an agent or a family member making decisions about risk on their behalf. Agents have a duty to ensure that services are purchased that promote the service user's well-being. That duty ought to extend to ensuring that they do not employ people who are barred from working with vulnerable adults.
	Other people with learning disability who use direct payments and who manage their own bank accounts may need to be given support to understand the vetting and barring process, so that any decision not to check prospective employees is properly informed. It may be safer to start with the assumption that people employed by the recipients of direct payments should be checked, and then to allow the recipients of direct payments to opt out of checking their employees.
	Although I wholeheartedly support the Government's intention to protect vulnerable adults through the Bill, the inconsistencies and potential loopholes that exist within it leave me with real concern for those most at risk. I hope that the Minister will address those issues, to ensure that the Bill offers the maximum protection possible to every vulnerable member of our society.

Lord Laming: My Lords, I, too, welcome and support the main thrust of this important Bill but, like others who have already spoken, I do so with some caution. We must remember that the three lists currently in operation, in addition to that of the Criminal Records Bureau, were self-evidently designed to address the different needs of different services covering a different and wider range of employees and for different purposes. It is of course right that, as far as possible, those lists should be combined to make the information more accessible, but I suggest that that will be no small task, not least because across the country decisions are being made almost daily which will have to be properly recorded in those lists and properly tested.
	The lists could not have been combined during the years of paper-based systems, but now that we have the new technology available to us, it is possible. Nevertheless, I urge the Government to take the time to ensure that the new system is both reliable and efficient. Experience suggests that national computerised systems are often not without their problems. The system will have the potential to affect people's lives, for good or ill, in very important ways, so getting it right is essential. Speed should not be at the expense of efficiency and reliability. Detail is of such importance in these matters.
	Like other noble Lords, I am concerned about the necessity to have two separate lists: one for children and the other for vulnerable adults. If there must be two lists, can the Minister assure the House that there will be efficient links between the two? Otherwise, as has already been referred to, someone could be barred from working with under-18 year-olds but could be appointed to work with over-18 year-olds, some with severe disabilities. Will the Minister also assure the House that these lists will in due course cover the whole of the United Kingdom, and will he also address the points that have already been made about those who come to work in this country from other EU countries?
	I understand in some ways what the Minister meant when he twice referred to a shared responsibility in his opening address, but I take this opportunity to urge the Government to ensure that there is no doubt in future that the responsibility for the employment and the performance of staff rests squarely with the employing organisation. I say that because only the employer can assess the suitability of a candidate for any post. The employer must be accountable for the quality of service and the safety of its users. This, of course, applies to those who do not appear on any list, but there should be no ambiguity about where the responsibility lies for the safety and well-being of vulnerable people.
	Unless a person is barred, the appointment will very often be made on the basis of an assessment of risk. Of course I understand that there will be those who believe that once a person has a criminal record, they are ruled out from being appointed to any job in which they may come into contact with vulnerable people. This, in my view, is both unrealistic and unacceptable—unrealistic because there is no huge untapped reservoir of potential recruits for often low-paid and very demanding posts, and unacceptable because potential employees have rights. These decisions must be seen to be reasonable at all times. I will not detain your Lordships long at this time of the evening, but let me just mention a few examples from my experience.
	The form of application that we used had a section for convictions which made it clear to everyone that any and every conviction had to be recorded, and that failure to record a conviction might jeopardise the applicant's position. Yet, time after time, we received information from police checks which the applicant had not recorded. I recall an applicant leaving the section blank. When his criminal record was checked, it was found that he had a conviction for possessing cannabis. When challenged about this, he replied, "Oh, that. It happened while I was at university, but I have long put that behind me". Another criminal check on an applicant revealed that the person had a conviction for taking a vehicle and driving it away with no licence or insurance. When challenged, he said, "Oh, but that's a motoring offence. It's not relevant to this task". Another applicant had recorded an offence of assault, but the check revealed a conviction for grievous bodily harm—an altogether more serious matter. On further inquiry, however, it emerged that two youths had got into a fight, blood was shed by one, and the more serious offence was therefore the conviction. Another applicant recorded a conviction of unlawful sexual intercourse, but further inquiry revealed that, when he was 18, he got his younger girlfriend pregnant.
	Would barring apply to all these circumstances? I think not, bearing in mind the range of different tasks that are being considered and the different degrees of risk that will have to be taken into account in each circumstance. That is why I think it is essential that we in no way weaken our commitment to ensuring that the employer is responsible for ensuring that the staff who are employed are suitable to the task, and that the employer takes into account the nature of the post that is being advertised, the degree of contact with vulnerable people, the level of supervision, and the record of the applicant since the conviction. It is for the employer to take the decision and to justify that decision as it applies both to vulnerable people and to the rights of the applicant. It is important to protect vulnerable people, but it is also important that we do not undermine the enthusiasm of those who genuinely wish to help others. That, of course, includes volunteers.
	I also urge the Minister to emphasise the importance of ensuring that those organisations that supply agency staff must also be held accountable for the quality of staff whom they employ. Agency staff may move from post to post, almost on a daily basis, to provide cover for those who are absent for any reason. The supplying organisation, which of course charges a fee for its services, must be accountable for the staff on its books.
	In that context, I invite the Minister to outline the appeal mechanism, not least because we must recognise that in this work staff are often exposed to the danger of malicious allegations which can have a devastating impact on them and their families. I am sure that I need not dwell on that, but it adds emphasis to ensuring that the legislation must have proper safeguards which are built in for everyone, openness and transparency. In supporting the Bill, I hope that the Minister will reassure the House that there will be transparency, fairness and reasonableness for all concerned.

Lord Harris of Haringey: My Lords, I should like to add my thanks for the helpful and detailed introduction that we have had to this Bill from my noble friend. It is also a particular pleasure to follow the noble Lord, Lord Laming. If I remember correctly, we first encountered each other 24 years ago when I was a newly elected chairman of a social services committee. The noble Lord, I think, was president of the Association of Directors of Social Services. Since then our paths have crossed on a number of occasions.
	I also declare an interest as an adviser to the computer company, Anite, which has had responsibility for preparing the software underpinning the violent and sexual offenders register. I know that it has some issues in respect of how these new arrangements might operate. However, my remarks are nothing to do with any concerns that it may or may not have about the proposals.
	I start from the basis that in considering this legislation we should have regard to the UN Convention on the Rights of the Child. The preamble of that has made it clear that by reason of the physical and mental immaturity of a child, children need special safeguards and care, including appropriate legal protection, which is underpinned in Articles 3 and 19. I mention that because it is important to understand why we need to have in this legislation provisions which may undermine the human rights of some individuals who may wish to work with children and, for that matter, other vulnerable adults. But there is no right for individuals to work with vulnerable adults or children. It is something that people can seek to do, but because of the responsibility that governments, local authorities and organisations that provide care to those groups have, there must be an acceptance that the levels of vetting of such individuals must be higher than would be the case in other forms of employment.
	I am pleased therefore that the Bill seeks to simplify the various systems of checks and lists—the Criminal Records Bureau, List 99, the Protection of Children Act list and so on. The Bill specifies four categories of activity that will lead to inclusion on the barred list in some or all cases.
	The first category is those who have done something in the past which will qualify them for automatic inclusion. There is a second category where inclusion is subject to consideration of any representations that they may make, but the presumption is very much that they will be included on the lists. The third category, where the IBB will have discretion, relates to behaviour which has not led to some form of conviction or caution. The final category—again, there is discretion here for the IBB—is where there is perceived to be a risk of harm.
	The first two categories are fairly straightforward. I am sure there will be some debate on which categories of offence should be in the automatic group and which should be in those where there is some element of discretion in the light of representations. The House will be able to look at those matters in detail in Committee and I suspect consensus can be reached.
	The third category is also relatively straightforward. There is no presumption of barring, but the IBB has discretion and the person has to be given the opportunity to make representations if they are being considered for barring. The issue will revolve around a pattern, or examples, of previous behaviour which, though not having led to a conviction or caution, provides some substance enabling the IBB to look at the individual concerned. Again, I assume that there will be some debate in Committee about what requirements will be necessary for that and what criteria the IBB should operate.
	I want to say more about the fourth category, where there is believed to be a risk of harm. My noble friend Lord Adonis talked about a significant strengthening of the previous provisions in this Bill. I have a lot of sympathy with what the Government are seeking to do here and I have some understanding of the dilemmas which are faced. If I can go back those 24 years, to when I was a new chair of a social services committee, I remember several instances when successive directors of social services would come to inform me of a particular concern about individuals employed by the local authority. This was not because of some known behaviour and it certainly was not because of some previous conviction which had not come to light and which would have led to dismissal or some action being taken. Typically, a professional of longstanding experience who was supervising the individual concerned would say, "My professional experience tells me that the way in which that individual is relating to the child or the vulnerable adult in their care causes me concern. I cannot be more precise, but that is the sum total of my professional experience."
	Such cases happen. They are perhaps more frequent than your Lordships would necessarily assume and they are of course immensely difficult. I believe that where we take into account the UN convention and everything else, we have a responsibility to try to resolve such matters. I know that the way in which my then director of social services resolved the matter was often rather crude and perhaps would not have stood up to too close a scrutiny in an employment tribunal. But it involved finding a way in which that individual was not put in a position of working closely with a child or vulnerable adult. Perhaps if that individual then left and applied for a job in a neighbouring authority and there was a request for a reference, some explanation or illustration might be given over the telephone. That would perhaps be more difficult today, given the requirements on the way in which one deals with employees and what can or cannot be said in references.
	Clause 27 tries to address precisely this issue. A regulated activity provider must provide the IBB with information in certain circumstances where the regulated activity provider,
	"thinks . . . that the harm test is satisfied".
	The harm test is that the individual concerned may, among other things,
	"attempt to harm a child or vulnerable adult".
	The key words are "may attempt", or think they "may attempt". Just to ensure that there are no problems:
	"No claim for damages shall lie in respect of any loss or damage suffered by any person in consequence of the provision of",
	such information. Perhaps it should do so, given that this is about something which it is thought might happen. For local authorities there is even the explicit statement in Clause 30(5) that,
	"it is immaterial whether there is a finding of fact in any proceedings".
	I start from the basis of believing that we need some way of capturing that professional feeling that people who have worked for a long time in a particular environment call upon when they say, "I am worried about this individual". However, I am conscious of the dangerous ground on which we tread in terms of the rights of the individual about which such statements are made. In the example I have talked about, the individual remained in employment, although perhaps not doing the job to which they were originally appointed. Further, my example did not rely on just one professional judgment. Not only was there the professional assessment of the staff supervising the individual concerned, but also the professional judgment of the director or assistant director of social services saying, "In this instance, I have confidence in the supervisor who is making this judgment and my other knowledge of the circumstances suggests that we should take this seriously". Under this legislation, in the circumstances of my example the local authority would be required to refer. I think that would be justified.
	But what is the IBB going to do with such information? The information essentially reflects someone's subjective view of what someone else might do in the future. The board will notify the individual concerned, who in turn will make representations. No doubt those representations will say, "I am shocked and horrified that this suggestion has been made. I have always worked with children and vulnerable adults and I would not dream of harming them under any circumstances". How are the members of the IBB to resolve the situation? I pity them in having to face such dilemmas. I am sure they will be expert professionals with lots of experience, but when faced with written statements and even talking to the individual concerned, it will be very difficult to make a judgment.
	I have given an example from the point of view of a local authority social services department. Other providers, such as small businesses, may have only a handful of employees. There may not be a second professional who can validate what is being said. Moreover, there is the danger of the malicious referral. If a former employee has made your life a misery, once they have departed, what could be easier than blighting their life for ever by making such a referral? I am sure that we will return to these issues during the forthcoming stages of the Bill. Can my noble friend on the Front Bench tell us about the process to be used by the IBB in considering such matters? How will it consider them? What will be taken into account? Can additional inquiries be made, and if so, what sort of inquiries would they be?
	It is also clear that this is not a read-across from previous legislation. The Protection of Children Act 1999 talks about "information", as does the Care Standards Act 2000, while the Education Act 2002 refers back to both earlier Acts. Those were about information, not what someone thought. I believe that professional judgment may well be something which should be captured in the interests of protecting children, but how that is done, how it can be set out in legislation and provided for in guidance, is going to be extraordinarily difficult. I hope that my noble friend can give us some indication on how the guidance is to be prepared.

Lord Northbourne: My Lords, I shall be fairly brief. To speak last in a debate on such a complex Bill is not easy, particularly if one was planning to propose a rather heterodox approach, out of line with those which have been advanced by other noble Lords, with all of whom I agree. I wish simply to make an additional point, but I believe it to be important.
	Of course the Children Act 1989 says that the child's welfare shall be the court's paramount consideration. Of course it should be the paramount consideration of all legislation to protect children. I fully support the principle enshrined in this Bill. We must protect children from abuse and from significant harm by those who work with them. I congratulate the Government on bringing the Bill forward, but we must also recognise that it is crucial to avoid frightening away adults from the caring professions looking after our children. We must also be fair to those adults. My concern is that if we are to protect the nation's children, we need enough good staff to provide that care.
	I am not comfortable with this Bill. I find it confusingly drafted and uncertain in meaning. I shall be helped by the letter received—only a few hours ago, unfortunately—from the noble Lord about the appointment of the board. It has also been helpful to hear what other noble Lords have said about the Bill. I understand it better now than I did, but before I came into the debate I wrote that the Bill seems to give the Secretary of State, through regulations and through the powers he has to appoint the barring board and the tribunal, the power effectively to terminate the career of any adult working with children. That is on the basis not of a court decision, but of suspicion or allegations, which cannot necessarily be verified.
	I recognise the delicacy of the situation. The noble Lord, Lord Harris, made an extremely important intervention that touches upon the point that I am making. The decision that the board makes cannot be challenged in the courts except on a point of law. I made a note that that might be an abuse of human rights, but it is not human rights that I am concerned about. I am concerned that the threat of this bar could have an unintended consequence for the recruitment and retention of well motivated staff.
	There is already an acute shortage of good quality and well trained professionals in social services, the health-visiting profession and residential care, to mention but three. The Government have important plans to extend caring services, including thousands of new children centres and thousands of new extended schools. Brilliant. Those are excellent plans, but they will all need additional staffing. Human resources are going to be needed. If a career in those services becomes too risky, staff shortages could result. If they did, the last case might well be worse than the first. More danger and harm might be created for children.
	I do not want to delay the House, so I am only going to touch on some of the aspects of the Bill that seem to me to need attention. Some have already been touched on by others.
	I am not happy about the no claim for damages clause. Does it not even apply in cases of negligence, malice or malpractice? Also, Clause 41 seems to conflict with Clause 2(6). In Clause 4 is the issue of appeals, but why appeals only on a point of law? Surely the most important issue in most such cases is false accusations. Those are a matter of fact, not of law. It is on false accusations that there is a need for the possibility of an appeal to the courts.
	Nearly every noble Lord who has spoken has mentioned Schedule 2 and the problem of "harm", which is not defined. I agree that it probably should be the same definition as the interpretation of "significant harm" in the Children Act 1989. If it is, let us say so. Any certainty that we can get in the definition of what we are talking about will increase the confidence that professionals can have about what they are allowed and not allowed to do. It will increase the uniformity of judgment across the country and make the list a great deal fairer and more effective.
	What do the Government mean by,
	"likely to endanger a child"
	or "risk of harm" or "relevant conduct" in paragraph 4 to Schedule 2? These are dangerously vague concepts. That vagueness represents a threat to professionals. What is the threshold of risk? As some noble Lords have said, Barnardo's and the NSPCC have drawn attention to the need for a much clearer definition of thresholds for barring. The NSPCC states:
	"The criteria and threshold against which people are barred must be at the appropriate level—neither too high nor too low. We are concerned that this has not been specifically set out on the face of the legislation. We would like to see disqualifying factors clearly laid out".
	I thoroughly endorse that comment.
	Finally, Clause 42 raises the important issue of families. We shall have to have another look at that. Perhaps I have read the measure wrongly, but it seems to me that a man who has, for example, sexually abused a child in the family could not be put on the list although it might be most appropriate that he should be.
	Without compromising the protection of children, what are the Government going to do to protect professional adults who work with them?

Baroness Sharp of Guildford: My Lords, I too thank the Minister for introducing the Bill and presenting it with a clarity that explained some issues about which I had been uncertain. However, the debate has also shown the number of difficulties that we shall face as we examine the Bill in detail.
	There is, indeed, much to be welcomed. The Soham murders showed up the inconsistencies of the present system, with different authorities using different checks, and perhaps above all the chronic failure of the systems in place to transfer information across county or police boundaries. It is good that the Bill will bring together for the first time all the information, so that the CRB and List 99 will be amalgamated into one database, provided that we can establish that database satisfactorily. I refer also to the establishment of the online facility for checking combined with continuous monitoring, which means that up-to-date information will be easily and quickly available as compared with the current six-week wait for CRB checks.
	It is also good that, where discretion is required for decisions, it is now being transferred from the Secretary of State to an independent board. I think that all of us welcome that shift of responsibility. Such decisions are not appropriate for politicians. I dispute the point that, I think, the noble Lord, Lord Northbourne, made about the fact that the Secretary of State would appoint the board. The board will be genuinely independent. We welcome that.
	We also welcome the expanded coverage from schools and care homes to domestic employers of nannies, childminders and so forth. However, in welcoming that provision, we should be very aware of the need to raise awareness so that those who need access to the system know about it and can get it.
	It is also good to have vulnerable adults included alongside children. The abuse of vulnerable adults is something that we know much less about than the abuse of children. The noble Lord, Lord Rix, spoke for some time on that matter. It is good that the profile of vulnerable adults has been raised.
	In this Bill, the devil is surely in the detail, and a number of general issues seem to have come forward time and time again in our discussions. A central one is the question of the clarity of definitions, which the noble Lords, Lord Laming, Lord Harris and Lord Northbourne, all raised. If we are to have the four categories of barring that the noble Lord, Lord Harris, mentioned, it is essential to know where the lines are drawn. There is no definition of harm in the Bill. All the definitions and the whole question of the risk of harm—what sort of behaviour will endanger children—are to be left to guidance. It is to be prescribed in guidance from the Secretary of State, and decisions will then be taken by the Independent Barring Board. What that decision-making process will be is very unclear, yet the decisions taken will be absolutely crucial.
	Allied with that is the issue of the rights of appeal. The noble Lord, Lord Northbourne, said that decisions could not be challenged in court except on points of law. Yet someone's whole career can be put in jeopardy in such circumstances, as the noble Lord, Lord Harris, pointed out. Surely, under the European Convention on Human Rights, there should be the right of appeal against the automatic barring list and, for that matter, decisions made by the IBB other than just on points of law. Surely, there must be the right on occasion to challenge the facts. So, we need clarity on precisely who is and is not included in the barred lists.
	A second area where we need clarity of definition is in distinguishing between regulated and controlled activity. The Bill states that anyone on the barred list is not allowed to work in regulated activity yet can work in a controlled activity, subject to safeguards and, again, following guidance from the Secretary of State. The distinction between them is whether the activity is to be carried out regularly and frequently; if so, it is a regulated activity whereas, if it is only occasional, Clause 8(7) makes it clear that it is not an offence to engage in regulated activity without being subject to monitoring—for example, parents helping in classrooms. Yet still no definitions or criteria are included in the Bill. How often is "frequently", and how seldom is "occasionally"? What distinction is to be drawn, and how can parents or employers—or the general public, for that matter—know whether an adult with whom their children are in contact has been vetted or should, indeed, be subject to vetting procedures? Why, for example, do we insist that school governors are subject to such vetting, while a parent who comes to help in the classroom is not? The distinctions are vital, yet there is no clarity in them.
	A linked point is the crossover between children and vulnerable adults. The bar applies to all posts in schools and to the provision of services to children or in care homes but only where the person concerned comes into close contact with children or vulnerable adults, such as in day centres or hospitals. Surely, the criteria ought to be whether the individual concerned has unsupervised contact with children or vulnerable adults. There is the issue of canteen and cleaning staff in schools and hospitals. Often, such staff are likely to come into contact with vulnerable adults and children for substantial, unsupervised periods. Surely they need to be vetted in the same way. There are real difficulties in those circumstances.
	Likewise, where a post is not a regulated one that carries the automatic exclusion of anyone who is on the barred list but is a controlled post that allows those on the list to fill the post subject to monitoring and supervision and is subject to disclosure, the vetting and barring scheme policy briefing pack suggests that employers need to "think carefully" about the level of access to children or vulnerable adults that the post gives and whether additional safeguards are necessary. What does "think carefully" mean? Does it mean producing a written risk assessment, which arguably is what one wants in the circumstances?
	Then there is the issue raised by the noble Lord, Lord Rix, of vulnerable adults who pay directly for their services via the independent living allowance; that is, recipients of services that are not classed as a regulated activity. Such people are often alone for long periods with those whom they engage and are very dependent on them. Would it not be sensible for such people to be able to access secure online information about those whom they engage, just as people who employ nannies or music teachers should do? Where they are not in a position to do so, those who act as their trustees or agents should be able to do so.
	All those issues arise from the lack of clarity in definitions, the vagueness of the language concerned and the need to look always to the guidance. The issue raised by the noble Baroness, Lady Thornton, was interesting and different, and the noble Lord, Lord Northbourne, also mentioned the potential disincentive to volunteers of the procedures in the Bill. As the noble Lord, Lord Northbourne, asked, are we in danger of frightening away those who are prepared to go into the caring professions, when we are desperately short of such people? The noble Baroness, Lady Thornton, spoke about those who moderated internet chat rooms and the responsibility that they had for the material that went into them. How far will the burdens placed on moderators frighten them away? In many senses, it is the thin edge of a much thicker wedge. It is extremely difficult to find people who are prepared to run Brownie and Scout groups because of the burdens of the bureaucracy that we are placing on them.
	The Local Government Association has been much concerned with costs. How much will the system cost to set up? The noble Lord, Lord Laming, suggested that we might be a little sceptical about how easy it was to set up such a substantial database and how well it would work. The example of the Child Support Agency does not make one optimistic about how such a database might work; one hopes that it will work very much better. Who pays? The explanatory memorandum suggests that, once the integrated database is established, charges via the Criminal Records Bureau might rise considerably, although there will be online consultation. It says that the online consultation will be free. Will an employer be satisfied with just online consultation, or is more required? Do you require the information to be in writing? I would have expected so. If there is to be no charge, who will meet the costs of running the database? If it is online, how will access be regulated? It will contain a lot of confidential information about individuals, including, it has to be said, a lot of information that my noble friend Lady Walmsley described as "soft information". How can we prevent an individual posing as a potential employer and obtaining confidential information about individuals on the database?
	The LGA is also worried about litigation. As the noble Lord, Lord Harris, said, given all that information about individuals, if the individual is to sue those who have provided the information—if they know about it and if there is litigation in relation to the list—who will pay? Who is to test the veracity of the data? Is it to be the Independent Barring Board? What about allegations of sexual harassment against teachers? How can we prevent such vexatious complaints? Do the school governing body or the police investigate them before passing them on? How does the individual clear his name if it is wrongly placed on the list? All those issues are unclear. I can see that the GLA was and is undoubtedly worried about who will meet the costs of litigation.
	I conclude with a general welcome for the Bill's broad aims, but there are problems that we will have to tease out in Committee.

Baroness Morris of Bolton: My Lords, I too would like to thank the Minister for introducing the Bill so clearly to your Lordships' House. The provisions it makes are long awaited and very much welcomed by us on these Benches. I have listened with great interest to all noble Lords' contributions to today's Second Reading debate. The contribution of the noble Lord, Lord Laming, was as ever a comprehensive and sensitive appraisal of this challenging issue; and who could disagree with the noble Lord, Lord Northbourne, about the danger of scaring away good people and well-motivated staff from working with children and vulnerable adults?
	Our children's safety is precious to us. Events have unfolded in the past few years which have caused great alarm to parents of young children and to the children of not-so-young parents. The Bill brings in measures that have been promised since the publication of the Bichard report in 2004. Those provisions cannot be implemented soon enough. This is rightly an ambitious Bill and contributions from all noble Lords have pointed to the fact that we all want the provisions of the Bill to succeed. But we need to get those provisions right. The noble Baroness, Lady Thornton, and the noble Lord, Lord Harris of Haringey, both spoke of the criteria under which an individual may be included on the barred list. I too was surprised—as many noble Lords have mentioned—and concerned to see that those criteria are not in the Bill. What is more, under Schedule 2, those criteria can be set by the Secretary of State, and it is the Secretary of State who makes the final decision as to whether someone is to be included on the list.
	There are some provisions for appeal, but my concerns echo those of my noble friend Lady Buscombe. Once an individual is included on the most stringent list, he or she will have no process of appeal. The rhetoric surrounding the Bill suggests that responsibility is being shared out among experienced professionals. But is the reality that the Secretary of State remains firmly in the driving seat? I am reminded of the comments of the noble Baroness, Lady Walmsley, in the Second Reading debate on the Childcare Bill, which she mentioned again today. She asked what would happen if a 17 year-old boy had intercourse with an underage girl, which was consensual, but which led to him being placed on the register of sex offenders, even though they went on to form a solid relationship. Would he be included on the barred list for ever? As the law presently stands a judge would have a discretionary power to disqualify him from working with children.
	I read with interest the Minister's letter to the noble Baroness, Lady Walmsley. I, too, was surprised to see that Ofsted has the power to waive a disqualification; I think that others would also be surprised. Will the Minister say whether Ofsted will retain its powers under the Bill?
	Of course, the most pressing concern is the vulnerable groups that we are seeking to protect—the people who stand to lose the most and who can defend themselves the least if the system fails them. Under Clause 14, it is possible for barred individuals to work in prisons and probation centres, yet we are all only too aware of the mental problems and vulnerability of many of our prisoners—not least the many who suffer learning disabilities, whose plight the noble Lord, Lord Rix, so graphically outlined.
	Even though our pressing concern is for vulnerable groups, we must be vigilant and concerned for the rights of those who may find themselves wrongly included on the list. As the right reverend Prelate the Bishop of Peterborough so rightly said, we must also be watchful that we do not foster a culture of suspicion or stifle the spontaneity of ordinary everyday life.
	I am reminded of an episode involving my honourable friend in another place, Tim Loughton. He is president of a local animal charity, which was proposing to hold a Santa's grotto, with the committee dressing up as elves to help Father Christmas. Of course, my honourable friend jumped at the chance to become a Christmas elf for the day—I am sure that noble Lords would have jumped at the chance to see that sight. But when it came to it, that good-natured participation was stifled by the need for a CRB check.
	I accept that in some situations you can only regret the fact that life is not what it used to be, but that anecdote raises a serious point. We must not stifle everyday life in the pursuit of total control. As we have heard, volunteers are a rare and valued commodity, especially for charities, and we must be wary of discouraging their generosity. The noble Baroness, Lady Sharp of Guildford, mentioned just one of those difficulties—finding people to run Scout and Brownie packs.
	We face a challenge to get the balance right. This brings me on to the technical side of things. The computer schemes will hold very sensitive material. Noble Lords will remember as well as I do the string of fiascos surrounding government computer systems. The CSA system will not work fully for two years. The council tax revaluation system has cost upwards of £10 million to install and is now being cast aside. Also, we heard yesterday the sorry tale of farmers being denied much-needed income because, we understand, the systems in the Rural Payments Agency cannot cope with the complexity of the single payment scheme. I could go on.
	Across the board, this Government's record with computer systems leaves much to be desired. The system that we are discussing in this Bill is already well behind schedule and has already cost £54 million. In light of that, I wonder what reassurances the Minster can give to show that this system will be robust. Without an efficient computer system, the provisions of the Bill will be severely compromised.
	There is a fine line to be drawn not only in designing and creating these lists, but in preserving and updating them. This is a two-tiered issue. First, the lists need to be solid, robust and efficient. Secondly, we need to be mindful of the way in which the list is used. We must make it a priority that the list is not a substitute for communication between professionals, parents and schools. These lists will only be as effective as the organisations that use them. They are a starting block from which a strengthened attitude to child protection can spring.
	One of our major concerns is that the list will be terribly efficient and well used but only in some areas of the country. I repeat the concerns of my noble friend Lady Buscombe in asking how comprehensive this list will be. Will it link up to Scotland, Wales and Northern Ireland? There was a recent case of a Sussex paedophile who was arrested for grooming a young girl in Northern Ireland. Will it link up to other countries with other such lists? The Minister outlined a number of checks that will take place. Those appear cumbersome, and I agree with my noble friend Lady Buscombe that this will challenge the system.
	I come to another issue that the noble Baroness, Lady Buscombe, highlighted, and on which the noble Lord, Lord Rix, spoke so strongly, which is the need to have two lists at all. In the face of the potential loopholes that I have mentioned, I wonder how well the lists will "talk" to each other.
	There is evidence that some who abuse children will go on to abuse adults. The statistics from the Ann Craft Trust quoted by my noble friend support that. They show that there is a cycle of abuse not just from abuser to abuser, but a cycle which leads those who abuse to seek new types of victim.
	Noble Lords will agree that looked-after children are among the most vulnerable in our society. The statistics from the National Children's Bureau family summit in 2003 showed that looked-after children suffer from a high rate of mental health problems: 45 per cent of five to 17 year-olds were assessed as having at least one psychiatric disorder.
	Foster carers play a huge and essential role in the well-being of some of our most disadvantaged children. In 1998 the House of Commons Health Committee said that their dedication and commitment should be saluted. The noble Lord, Lord Laming, the noble Baroness, Lady Walmsley, and I have often referred to them in your Lordships' House as heroes. It goes without saying that the vast majority do a truly wonderful job. But there is a severe shortage of foster carers. When they offer their services they are welcomed with open arms. But I wonder how the organisations that organise fostering will manage to cope with the pressure of vetting every single applicant for foster parenting without extra help.
	Will the Minister indicate what kind of support will be offered to those hard-pushed organisations, and other organisations that rely on good will to implement the essential requirements of this legislation? I wonder, too, about the required checks on those who wish to visit vulnerable people, say, for example, in care homes. Let us say for argument's sake that they are a distant cousin and wish to take their relative out for a walk or out for a day. Will they need to be CRB checked? At what point does a relation become so distant or a friend so old that they are no longer considered safe? These are difficult but necessary questions.
	While keeping at the front of our minds that it is those who are on the receiving end of abuse that we are protecting, we need also to consider that once upon a time many of those who now commit abuse were abused themselves. I bring that to the attention of your Lordships because we must be aware of every part of the challenge that we face. The Minister mentioned wider safeguarding measures, which we debated in your Lordships' House a few months ago.
	The Bill is brought to our House in a spirit of care and fairness. It is our job to present reasonable, effective legislation that can be implemented efficiently. We will work hard to ensure that it sets up a workable framework of protection and reassurance.

Lord Adonis: My Lords, I am immensely grateful to all noble Lords who have spoken in such a constructive spirit to help us address the important and complex issues that are raised in the Bill. I do not know about the Christmas elves mentioned by the noble Baroness, but as we start knocking on towards midnight, I assure the House that this Prince Charming is slightly worried about whether he is engaging in a regulated activity, which might need the new IBB's clearance if it carries on for a significant length of time.
	I shall not seek to address many of the very detailed definitional points that we shall, rightly, get into in Committee, except to say that I have taken careful note of all the points raised and will seek to address them all as we approach Committee. On some of the broad definitional issues regarding "frequent", "infrequent", "harm", and so on, it may be useful if I circulate noble Lords with the Government's interpretation before we go into Committee. I have substantial notes here, and if I were to do that before the Committee stage, it will give us a more agreed basis on which to discuss these important issues in Committee.
	As regards the broad principles underlying the Bill, I accept the points made by the right reverend Prelate the Bishop of Peterborough, the noble Baroness, Lady Walmsley, and my noble friend Lord Harris, that no individuals should have the right to work with children: it is a privilege. Individuals should be able to give full assurances of their good conduct and safety in so doing. I take that to apply in full measure to the vulnerable adults whom the noble Lord, Lord Rix, rightly highlighted in his discussions. I also agree with the right reverend Prelate about the need for rigorous interview and monitoring arrangements. None of the provisions in the Bill is a substitute for the proper role of employers and the vigilance which they have to observe, not just in the process of recruitment, but on an ongoing basis in exercising their duties as employers. I stress to the noble Lord, Lord Laming, that nothing I said about the considerable duties of the state, which we are enhancing in the Bill, and the continuing obligations of users of services to be vigilant, reduces in any way the responsibilities of employers which are paramount. They are set out at great length in the Bill and will be in subsequent guidance.
	I shall address such issues as the operation of the new IBB, appeal rights and so on in Committee. We have thought through the implications of the regime we are putting in place. I stress that the regime involves far greater transparency and enhanced due process than is available at present. For historical reasons, decisions of an extraordinary discretionary kind, with few rights of appeal in the case of many of the lists and barring arrangements, are in place. We believe that these provisions will enhance them considerably. We have to get the balance right between providing for due process and for our obligations under treaties and the Human Rights Act and, at the same time, not discouraging people from coming forward with legitimate concerns, and for action to be taken swiftly.
	For example, with regard to offences which would involve an automatic bar with no right for representation—an issue raised by several noble Lords—I stress that it will be a significantly shorter list than currently applies in the case of List 99 where there are 43 prescribed offences for which automatic entry on the list takes place and there is no right of appeal. In deference to our duties under the Human Rights Act, and with a proper sense of proportionality, we intend to have a shorter list than currently applies under the List 99 arrangements and to ensure that representations can be made. Taking up the point raised by the noble Lord, Lord Northbourne, that is a kind of appeal. In what to any reasonable person would seem a perfectly fair case for an automatic bar, the new regime will give individuals the right of representation. We also intend to ensure that there are rights for barring decisions to be reviewed. On the point raised by the noble Baroness, Lady Walmsley, and other noble Lords, we are considering the periods for which barring applies. It could apply differentially for older adults as opposed to those under the age of 25. Where young people acquire offences for conduct in their teenage years, but which on a reasonable assessment of their progress since it would be right to reassess, that reassessment can take place in a shorter period than would apply to those who are older.
	We have given a good deal of thought to all the issues raised. I hope that in Committee I shall be able to assure noble Lords that the concerns are met. I accept that we may need to be tighter with regard to some of the definitions. I am ready to give further indications of the guidance which the Secretary of State will be minded to bring forward in these areas.
	Money, as ever, forms a large part of our proceedings. The DfES and the Department of Health will provide upfront investment of nearly £17 million in 2007-08 for the setting up of the new centralised vetting and barring processes. The annual operating costs of the new scheme are expected to be in the range of £16 million a year over the first five years of the scheme starting in 2008-09. That is additional to the cost of the existing CRB disclosure and related processes which are about £83 million a year. CRB standard and enhanced disclosures currently cost £29 and £34 respectively. From 1 April, they will rise to £31 and £36. The costs will be containable.
	Several noble Lords referred to the composition of the IBB, which will be absolutely critical to the effective performance of its functions; hence the consultation paper which my right honourable friend released today, on which I will seek the views of noble Lords in Committee. It is clear that we expect the right balance of expertise in the protection of children and vulnerable adults to be represented in its membership. We have in mind a membership of around 10. All of these are likely to be full-time appointments. The case made by the noble Baroness, Lady Buscombe, for members who have appropriate legal qualifications is well made. She asks whether it may be appropriate for secondment to take place to secure expertise. We are prepared to see secondments take place as appropriate.
	We have experience of establishing such a body, because we have already established the interim expert panel—following my right honourable friend's Statement of 19 January—which now advises her on List 99 cases until this set of arrangements is in operation. My right honourable friend announced a panel at the beginning of this month, with high-quality representation from the sectors of child protection, the police, education—including further education—prison and probation, parents, child and adult psychiatry and children's social care.
	A great deal depends on the quality and processes established by the independent barring board when it is operational. I accept the points made by my noble friend Lord Harris—there are going to be some important and difficult procedural issues that we will need to grapple with as it sets about its work. Of course, we are not foreign to this territory. We have set up large numbers of review decision bodies on immigration, special educational needs and a whole range of activity involving difficult and often extremely vexing decisions about individuals, having to take information from a wide variety of sources. We do not see the IBB as different in that respect. With high-quality membership and good staff, it will be able to establish appropriate procedures.
	The issue was repeatedly raised of whether there should be one list for both children and vulnerable adults in place of the proposed two. It would be disproportionate for a person who has been barred from working with vulnerable adults—due to, for example, financial fraud—to be barred from working in all positions with children; one can go down the list of potential cases and see that there are distinct issues between the two groups. Although it is therefore appropriate to have two lists, where there is evidence of a risk to both vulnerable groups, the individual will be considered, as a matter of course, for inclusion in both lists. The independent barring board will consider this on a case-by-case basis. The two lists will also be aligned. The same processes will apply for both lists; they will both involve consideration of criminal records and information flows from professional and regulatory bodies, employers and local authorities. The broad criteria of risk and appeals processes will apply to both lists. There will be a high degree of co-ordination between them.
	That also applies to the issue of alignment between Scotland, Wales and Northern Ireland, which was raised. The Bill will apply to England and Wales, but we will ensure that the Scottish system, which the Scottish Executive is intending to introduce to its own legislation, is closely aligned. There will be mutual recognition of barring across the United Kingdom, to ensure that proper and robust systems are in place. The Bill provides for the Secretary of State to specify that a list maintained in Scotland and Northern Ireland corresponds to the barred lists in England and Wales. A person banned in Scotland and Northern Ireland will automatically be banned in England and Wales so that we do not find individuals slipping through the cracks between the two, as it were.
	The noble Baroness, Lady Morris, rightly said that there are going to be significant issues to address on some of the arrangements and thresholds for barring in the schedules. We accept that, although I do not believe that we will find this unduly problematic when we come to definitions. I stress that the Secretary of State will not be engaged in the making of decisions on any individual whatever. The Secretary of State's sole role would be in guidance underpinning legislation. Ministers will play no part whatever in individual cases. That will be the responsibility of the IBB itself.
	The noble Lord, Lord Rix, raised the difficult area of how to draw the line on levels of protection in respect of elderly people and the services that they consume. I expect we will debate this fully in Committee. He also raised the question of indirect payments, which is a difficult case. The purpose of moving to direct payments was to give individuals more choice and control over their own lives. We have to be careful not to so regulate that choice, and their capacity to manage risk, that they do not exercise those choices in the first place. I think that the noble Lord will fully understand the difficult balance that we have to strike in this area. We will seek to ensure that the risks are effectively managed. There will be appropriate guidance to individuals—which, of course, they may find hard to access—and to local authorities and others who advise them as they set up their direct payment schemes and, in due course, the individual budget proposals that we are putting in place. I hope that we can strike an appropriate balance without so over-regulating the system that we deny the choice that we are seeking to promote.
	The noble Baroness, Lady Walmsley, asked about decision-making processes inside the Independent Barring Board. It will be for the IBB to determine its own decision-making processes, but, as with any body of this kind, we would expect it to be fair, efficient and robust. It will be subject to challenge in the courts if it fails to satisfy the appropriate criteria of procedural fairness. If that were to happen, the IBB would rapidly fall into disrepute and find its cases being challenged. We expect it to establish high standards. Of course it will need to consider legal advice and the cost implications of options for its decision-making processes.
	Many noble Lords mentioned the efficiency of the CRB. Perhaps the CRB's improvement has been so rapid that it has overtaken some of your Lordships in the improvements that it has made. The figures I have show that, after what was undoubtedly a very difficult start, it has made substantial improvements in recent years, so much so that in its annualised performance for the year to February 2006, it is now providing 84.4 per cent of enhanced disclosures within four weeks, not six weeks as was mentioned in the debate. It is now meeting its requirement for 93 per cent of standard disclosures to be issued within two weeks, and the most recent data for the provision of enhanced disclosures within four weeks are improved on the performance in the previous year. The CRB has been demonstrating great efficiency in its work and is building great confidence in the sectors with which it deals. I hope that that will carry forward into the new arrangements.
	On the issue of autobars without representation, List 99 at the moment automatically includes all individuals convicted of any one of 43 offences against children under the age of 16. The Bill retains a similar provision to bar automatically some offenders, but it will be a smaller number than is currently the case. At the moment, we are carefully considering where to draw the line between offences that are subject to automatic bars without representation and those where there will be a right of representation. I intend to give the House more details when we are in Committee.
	My noble friend Lord Harris raised a point about the risk of harm. He asked whether the IBB can conduct its own inquiries after referrals and how it will assess harm. We are clear that the legislation sets out the circumstances that should be met before employers, local authorities and professional regulatory bodies refer information to the scheme. We will also be encouraging domestic and small employers to refer information to statutory bodies such as the police or local authorities that can investigate allegations before they are referred to the scheme so that they come with a judgment made on the status of the allegations. However, on the point raised by the noble Lord about whether the IBB will be able to conduct its own inquiries after a reference, the answer is that it will be able to do so as it feels appropriate.
	The issue of checks on overseas workers was raised repeatedly in the debate. I dealt with it in my opening remarks, but I should stress that we are seeking to enhance those provisions. The CRB currently has an overseas information inquiry service that provides information on the systems of disclosure in operation in 21 countries and how an individual can obtain his or her criminal record or certificate of good conduct from the country in question.
	The current service is provided by a faxback service, although all the details will be available on the CRB website from 10 April, which will make it much more accessible to employers. We are also looking at how we can make further progress in ensuring reciprocity in exchange of information. For example, good progress is currently being made in establishing reciprocal arrangements with Australia, which is one of the main sources of recruitment for teachers into England. These should be finalised by this summer.
	Work is also in hand to create arrangements with Canada, which, for example, provides a large number of nursing staff to the NHS. We are also seeking to build on existing links to achieve effective bilateral relations with the Republic of Ireland and other EU partners in some cases. This will lead to a service effectively operated by the CRB in respect of those applying for information on employees coming from overseas.
	My noble friend Lady Thornton raised what I accept is the difficult issue of chat room moderators in an industry which is truly international; and therefore how you get the balance right between self-regulation, which in many cases has been successful, and further statutory regulation in the Bill. As the noble Baroness rightly says, Schedule 3, paragraph 2(1)(e), places a requirement on employers to check moderators of public interactive communication devices, which are likely to be used wholly or mainly by children. As she rightly says, many reputable UK service providers currently institute checks in respect of their moderators. Of course we want to build on those arrangements. We recognise that the industry is already an international one, but we believe that it is right to regulate fully those who work within England and Wales to ensure maximum protection.
	My noble friend asked about consultation. I assure her that we will be meeting stakeholders; indeed, the Home Office has a meeting with stakeholders later this week to address specifically the points she has raised. I will write to her after that consultation to let her know how matters stand.
	My noble friend Lord Harris referred to the difficult issue of malicious allegations. I should simply stress that referral information, such as allegations, will never lead to automatic inclusion in the list. The information will always be considered by the independent barring board, which will have the necessary expertise to make judgments about the risk individuals present.
	I do not wish to dissuade volunteers—their important role was rightly highlighted by the right reverend Prelate. Ensuring adequate checks where they have frequent contact with the mentioned groups is covered in the Bill. We need to get the balance right; we accept that. It is precisely to do so that we have the distinctions between frequent and infrequent and between regulated and controlled activities. If we did not have those distinctions—and some noble Lords thought it might be simpler if we rolled them into one—the scope of heavy-duty requirements in respect of CRB checks and checks on the new system would be extended to large groups. They play a more incidental role as regards children and vulnerable adults, but the role is none the less essential when taken in aggregate. It is very much with volunteers in mind that we have sought to make some of these distinctions.
	The noble Lord, Lord Rix, specifically asked why only a care home is a key setting in respect of adults; why not day centres? Day centres are not easily definable organisations. Our lawyers have looked at this with some care. We would be happy to engage with the noble Lord further on this issue. Many are held in church halls or community centres where a number of activities take place. There is a fungible set of definitions relating to day centres, whereas care settings are much more easily definable and recognisable. I am told that research by Action on Elder Abuse shows that although most abuse in respect of older people occurs in an individual's own home, 23 per cent was reported in care homes, which is a large proportion of the abuse recorded. So we thought that identifying that as a specific setting to be regulated in this way was appropriate.
	I will pursue further points in Committee. I am very grateful indeed to all noble Lords who have spoken. This is an issue of the utmost importance that we should get right. I simply end with the words of the 1996 Institute of Public Finance study, which looked at the cost of abuse to the state. It made two distinct points. It sought to monetarise the cost of abuse of child abuse to statutory and voluntary agencies at £1 billion a year. There are very high costs in the system for not monitoring abuse earlier and having to deal with it later. It then made the point, which all noble Lords will immediately recognise and support, that:
	"The total cost of abuse far exceeds this estimate. Individuals and families bear most of the consequences, sometimes for the rest of their lives at an incalculable cost".
	It is to avoid those incalculable costs being borne by children, those who work with them and those who work with vulnerable adults in future that we have introduced the Bill. I commend it to the House.
	On Question, Bill read a second time, and committed to a Grand Committee.

Water Environment and Water Services (Scotland) Act 2003 (Consequential Provisions and Modifications) Order 2006

Lord Evans of Temple Guiting: rose to move, That the draft order laid before the House on 27 February be approved [20th Report from the Joint Committee].

Lord Evans of Temple Guiting: My Lords, I hope that at this time it is convenient to discuss the two other draft statutory instruments before us tonight: the Smoking, Health and Social Care (Scotland) Act 2005 (Consequential Modifications) (England, Wales and Northern Ireland) Order 2006; and the Management of Offenders etc. (Scotland) Act 2005 (Consequential Modifications) Order 2006.
	The first order before us is the Water Environment and Water Services (Scotland) Act 2003 (Consequential Provisions and Modifications) Order 2006. This order is designed to ensure that certain consents granted under Section 36 of, and orders under Schedule 5 to, the Electricity Act 1989, as well as existing electricity permissions, do not conflict with those granted by the Scottish Environment Protection Agency under the Controlled Activities Regulations 2005. The order also makes amendments requiring the fisheries committee, Scotland, to consult SEPA and amendments in relation to landfill tax as a result of these regulations which replaced parts of the Control of Pollution Act 1974 with a new remedial action regime.
	Your Lordships may be wondering why there are to be two separate systems of consent for the construction and operation of power stations in Scotland. I will come to that explanation in a few moments. The point of this order is to ensure that those separate systems operate effectively, in line with the "Better Regulation" agenda. Renewable energy is an important part of the Government's energy policy and should be encouraged. However, it is also important to bear in mind the impact of renewable and other sources of energy on the environment in which power stations are built and operated.
	The order has its origins in the water framework directive—directive 2000/60/EC. The directive sets a Europe-wide framework for the long-term sustainable management of water. In Scotland, the directive is implemented by the Water Environment and Water Services (Scotland) Act 2003. In particular, that gives power to Scottish Ministers to introduce regulations to control activities impacting on the water environment. The Water Environment (Controlled Activities) (Scotland) Regulations 2005 were made using that power. The regulations mean that from 1 April 2006, SEPA will be responsible for authorising all controlled activities, such as abstraction of water from the water environment, to ensure compliance with the water framework directive.
	Of course, separate consent will still be required for the construction, extension or operation of generating stations or the grant of water rights under the Electricity Act 1989, so that matters of wider concern may still be addressed—for example, in respect of such matters as the visual impact of power stations on the landscape. It is desirable, therefore, that steps are taken to prevent duplication and potentially conflicting regulatory control between those two regimes.
	The second order before us is the draft Smoking, Health and Social Care (Scotland) Act 2005 (Consequential Modifications) (England, Wales and Northern Ireland) Order 2006. The provisions of the Act make it necessary to amend certain pieces of legislation for England, Wales and Northern Ireland. This order updates legislation to reflect the introduction in Scotland of NHS pharmaceutical care services, which replace the current NHS pharmaceutical services regime. It also reflects changes to the listing made by health boards of NHS optometrists in Scotland.
	The final order before us this evening is the draft Management of Offenders etc. (Scotland) Act 2005 (Consequential Modifications) Order 2006, which does three things. It ensures that prisoners transferred on a restricted basis from Scotland to elsewhere in the United Kingdom can continue to be subject to the provisions of the Management of Offenders etc. (Scotland) Act 2005. Similarly, it enables prisoners transferred from England and Wales to Scotland to be released in Scotland and to remain subject to the control of the English and Welsh authorities, although monitored by contractors operating the new home detention curfew system in Scotland. These changes will harmonise prisoner release systems throughout the United Kingdom, and will ensure that there is more efficient supervision for prisoners. Finally, the order disqualifies the chief officers of the newly established community justice authorities from being Members of Parliament.
	The order will also change the law in Scotland by creating a new system of release on home detention curfew licence for certain prisoners that is similar to the system operating in England and in Wales. We already transfer prisoners of all types between jurisdictions, so nothing in the order changes that. The key is better reintegration in the interests of public safety. The order ensures that, following their release from custody, such prisoners are appropriately monitored and supervised in the jurisdiction to which they have been transferred.
	I hope that noble Lords have found these explanations and the fuller Explanatory Notes more helpful. The proposals are a sensible and necessary use of the order-making powers in Section 104 of the Scotland Act, and I commend them to the House. I beg to move.
	Moved, That the draft order laid before the House on 27 February be approved [20th Report from the Joint Committee].—(Lord Evans of Temple Guiting.)

Baroness Buscombe: My Lords, I simply rise to thank the Minister for his full explanation of the orders. We are content.

Lord Maclennan of Rogart: My Lords, I am grateful for the Minister's explanation. I merely have two questions to ask him. The Water Environment and Water Services (Scotland) Act 2003 (Consequential Provisions and Modifications) Order 2006 appears to contain a provision for consents given under the Electricity Act 1989 to be treated as if modified as necessary to be consistent with the 2005 regulations. It appears that this process could have an impact on those who have already received consents, so how will those interests be protected? First, will those who have already received consents which have to be realigned with the new provisions be given notification of that fact? What happens if consequential cost is involved in adjusting to the new arrangements, and will there be an appeals procedure to enable such construed changes of condition to be reviewed?
	Can the Minister say whether the arrangements under the Smoking, Health and Social Care (Scotland) Act 2005 (Consequential Modifications) (England, Wales and Northern Ireland) Order 2006, which, again, seems entirely sensible, are reciprocal if the provision to enable services to be provided to reorganised Scottish health authorities will be mirrored by Scottish provision to English health authorities? Does that await Scottish legislation? It is clearly desirable that it should be a reciprocal provision.
	Finally, in respect of the management of offenders order, once again, it seems that the intention is that, on both sides of the border, provision for certain offenders' management should be broadly comparable. My understanding is that, although the arrangements covering the power to release prisoners on licence before required to do so and to release prisoners on home detention curfew arrangements are operative in England and, by the effect of this order, will be operative in comparable arrangements in Scotland, I am not entirely clear that it works the other way. If I am right, the memorandum indicates that there has been no such legislation in Scotland yet to provide for the similar treatment south of the border. That may be a matter that still has to be decided by the Scottish Executive, but I assume that there have been exchanges between the Government and the Executive on that point.

Lord Evans of Temple Guiting: My Lords, I am most grateful to the noble Lord, Lord Maclennan, for his three questions. I will have to write to him about his second question on reciprocal rights because we do not have the information here. On his first question, I can say that existing consents are to be read as though they are inclusive of the controlled activities regulations. Section 36 consents, under the Electricity Act, are designed to take into account a wide range of factors. The impact of those changes should be insignificant. Functions in those areas are of course devolved to the Scottish Ministers. Any appeal procedure is rightly a matter for the Scottish Ministers.
	The noble Lord asked why the UK was legislating before Scotland had the provisions in place. The order provides for prisoners transferred from Scotland to England and Wales on a restricted basis to remain subject to the new release arrangements provided by the Scottish Parliament. It also provides for prisoners transferred from England and Wales to Scotland on a restricted basis to remain subject to the release and supervision rules of England and Wales.
	As I said, I am grateful to the noble Lord for his questions. I will write to him on one of them. I am also grateful to the noble Baroness, Lady Buscombe, for her welcoming of the orders.

On Question, Motion agreed to.

Smoking, Health and Social Care (Scotland) Act 2005 (Consequential Modifications) (England, Wales and Northern Ireland) Order 2006

Lord Evans of Temple Guiting: My Lords, I beg to move.

Moved, That the draft order laid before the House on 27 February be approved. [20th Report from the Joint Committee].—(Lord Evans of Temple Guiting.)
	On Question, Motion agreed to.

Management of Offenders etc. (Scotland) Act 2005 (Consequential Modifications) Order 2006

Lord Evans of Temple Guiting: My Lords, I beg to move.

Moved, That the draft order laid before the House on 27 February be approved. [20th Report from the Joint Committee].—(Lord Evans of Temple Guiting.)
	On Question, Motion agreed to.
	House adjourned at three minutes past eleven o'clock.
	Tuesday, 28 March 2006.